Gujarat High Court
Amratlal Bhikhabhai Patel vs State Of Gujarat And Anr. on 15 September, 1993
Equivalent citations: (1994)1GLR637
JUDGMENT A.N. Divecha, J.
1. The order passed by the Mamlatdar and Agricultural Lands Tribunal at Olpad on 25th November, 1981 under Section 21 of the Gujarat Agricultural Lands Ceiling Act, 1960 ('the Act' for brief) as affirmed in appeal by the order passed by the Dy. Collector at Olpad on 24th February, 1982 and in revision by the Gujarat Revenue Tribunal at Ahmedabad by its decision rendered on 24th January, 1983 is under challenge in this petition under Articles. 226 and 227 of the Constitution of India. By the impugned order, the Mamlatdar and Agricultural Lands Tribunal declared in all 10 Acres 3.5 Gunthas of lands of the petitioner to be in excess of the ceiling area prescribed for that area.
2. The facts giving rise to this petition are not many and not much in dispute. The petitioner was found to be holding lands in all admeasuring 32 Acres 15 Gunthas in Village Veluk, Taluka Olpad. The necessary proceedings for determining whether or not he was holding lands beyond any ceiling area prescribed for that area was undertaken by the Mamlatdar and Agricultural Lands Tribunal at Olpad under Section 20 of the Act. In order to determine the nature of the lands held by the petitioner, the necessary certificate issued by the competent officer in view of Explantion-II to Section 2(6) of the Act was called for. The competent officer certified some parcels of land to be perennially irrigated and some parcels of land to be seasonally irrigated. The petitioner's grievance is that the competent officer did not associate the present petitioner with the inquiry conducted for determining whether the lands held by the petitioner were seasonally or perennially irrigated. In the inquiry proceedings before the Mamlatdar and Agricultural Lands Tribunal at Olpad, the petitioner objected to the validity of the certificate issued by the competent officer with respect to the nature of lands held by the petitioner. Thereupon the certificate was referred back to the competent officer for the purpose of deciding the objections raised by and on behalf of the petitioner with respect to its validity. The competent officer wrote back to, the Mamlatdar and Agricultural Lands Tribunal at Olpad to the effect that the certificate issued by him with respect to the nature of lands held by the petitioner was quite correct. It is the petitioner's grievance before this Court that at that stage also he was not heard with respect to his objections against the validity of the certificate issued by the competent officer regarding the nature of the lands held by the petitioner. It may also be mentioned that there was no certificate issued by the competent officer with respect to one parcel of land bearing block No. 441 admeasuring 7 Acres 31 Gunthas. The Mamlatdar and Agricultural Lands Tribunal at Olpad, however, considered the nature of that parcel of land to be the same as was certified by the competent officer with respect to the other parcels of land mentioned therein. On that basis the petitioner's holding was found to be to the tune of in all 59 Acres 7.5 Juntas. The petitioner was entitled to hold 39 Acres of land in view of the ceiling area prescribed under the Act. He was thereupon found holding lands admeasuring 20 Acres 7.5 Juntas in excess of the ceiling area. By his order passed on 25th November, 1981, the Mamlatdar and Agricultural Lands Tribunal at Olpad declared those lands to be in excess of the ceiling area and carved out some 10 Acres 3.5 Juntas (computable to 20 Acres 7 Juntas) of land to have vested in the State Government. A copy of the said order passed by the Mamlatdar and Agricultural Lands Tribunal at Olpad is at Annexure 'A' to this petition. The aggrieved petitioner unsuccessfully carried the matter in appeal before the Dy. Collector at Olpad. By his order passed on 24th February, 1982, the Dy. Collector at Olpad dismissed the petitioner's appeal. Its copy is at Annexure 'B' to this petition. The petitioner thereupon unsuccessfully invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad. By its decision rendered on 24th January, 1983, the Gujarat Revenue Tribunal at Ahmedabad rejected the petitioner's revisional application. Its copy is at Annexure 'C' to this petition. The petitioner has thereupon moved this petition under Articles 226 and 227 of the Constitution of India for questioning the legality and validity of the impugned order at Annexure 'A' to this petition as affirmed in appeal and in revision by the impugned order at Annexure 'B' to this petition and by the impugned decision at Annexure 'C' to this petition respectively.
3. Shri Sanjanwala for the petitioner has urged' that the petitioner ought to have been associated with the inquiry conducted by the competent officer for the purpose of determining the class of land within the meaning of Section 2(6) of the Act. In substance, runs the submission of Shri Sanjanwala for the petitioner, the certificate specifying the class of lands held by the petitioner could not have been issued without giving an opportunity of hearing to the petitioner. As against this, Shri Patel for the respondents has urged that the competent officer has to discharge executive functions while deciding the class of lands in the hands of the land-holder and it is not necessary for him to give any opportunity of hearing to the landholder before issuing the certificate regarding the class of lands in question.
4. In order to appreciate the rival contentions urged before me, it will be quite proper look at the relevant provisions contained in Section 2(6) of the Act. They read:
(6) "Class of land" means any of the following classes of land, that is to say:
(i) perennially irrigated land;
(ii) seasonally irrigated land;
(iii) superior dry crop land:
(iv) dry crop land.
Explanation I :- For the purposes of this Act:
(a) "perennially irrigated land" means lands which is assured of a regular and actual supply of water for a period of not less than ten months during the year from any source of irrigation and which is consequently capable of growing at least two crops in a year or is utilised for growing sugarcane crop:
Provided that land irrigated by a tube-well or lift irrigation from a perennial source of water, operated by diesel or electric power or both and constructed on or after 15th August, 1972 by any person other than Government or a local authority, shall not be deemed to be perennially irrigated land;
(b) "seasonally irrigated land" means land which is assured of a regular and actual supply of water for a period of less than ten months but not less than four months during the period from 15th September to the end of February, in a year from any source of irrigation, and is consequently capable of growing at least one crop in year;
(c) "Superior dry crop land" means rice land and orchard;
(d) "rice land" means land which is situated in a local area where the average rainfall is not less than 89 centimetres a year, such average being calculated on the basis of rainfall in that area during the five years immediately preceding the year 1959 and which is used for the cultivation of rice or which, in the opinion of the State Government, is fit for the cultivation of rice but does not include perennially or seasonally irrigated land used for the cultivation of rice;
(e) "dry crop land" means land other than the land specified in paragraphs (a) to (d) and grass land, that is to say, land which abounds in grass grown naturally and which is capable of being used for agricultural purposes;
(f) "grass land" referred to in paragraph (a) shall notwithstanding anything contained in that paragraph, be deemed to be rice land if it is situated in a local area referred to in paragraph (d) and in the opinion of the State Government it is fit for the cultivation of rice;
(g) land irrigated by dug wells except in the irrigation command of an irrigation project or in the bed of a river, stream, or natural collection of water or a drainage channel (being an irrigation project, a river, stream, natural collection of water or a drainage channel which is a perennial source of water) shall be deemed to be irrigated land;
Explanation-11:- For the purpose of paragraphs (a) and (b) of Explanation 1, a certificate granted by a competent officer in respect of any land, after such inquiry as he deems fit that it is perennially irrigated land, or as the case may be, seasonally irrigated land and for the purpose of paragraph (g) of Explanation I, a certificate granted by such officer, in like manner, in respect of any source of water referred to in the said paragraph (g) that it is a perennial source of water, shall be conclusive evidence in that behalf;
Explanation-111:- For the purposes of Explanation III, "competent officer" means-
(a) in relation to any other land or source of water which is situated within the jurisdiction of a canal officer as defined in Clause (6) of Section 3 of the Bombay Irrigation Act, 1879 such canal officer, and,
(b) in relation to any other land or source of water, such officer as the State Government may "by notification in the Official Gazette, designate in this behalf.
As transpiring from the scheme of Section 2(6) of the Act, the competent officer as defined in Explanation III to Section 2(6) of the Act has been empowered to undertake inter alia an inquiry to find out whether or not the land in question is perennially irrigated land or seasonally irrigated land before issuing his certificate in that regard. The certificate issued by the Canal Officer is made a conclusive piece of evidence with respect to the class of land inter alia to the extent whether it is perennially irrigated or seasonally irrigated. It cannot be gainsaid that the ceiling area has been fixed for different classes of local area in the light of the class of land defined in Section 2(6) of the Act. Different classes of land for the purpose of the Act are specified and defined in Section 2(6) of the Act. The definitions of the terms 'perennially irrigated land' and 'seasonally irrigated land' show and suggest that some factual data have to be collected to classify the land or lands in question. This would certainly involve an inquiry. This inquiry has obviously to be undertaken to determine the class of lands held by the land-holder for the purposes of the Act. Whether or not a landholder holds land in excess of the ceiling area will have to be decided on the basis of the ceiling area fixed in the light of different classes of land in different local areas. This inquiry is obviously to be conducted by the officer defined in Explanation III to Section 2(6) of the Act. This officer would no doubt be a competent person for the purpose. He could be a Canal Officer as defined in Section 3(6) of the Bombay Irrigation Act, 1879 or such other officer as appointed by the State Government for the purpose. He would certainly be a competent person for that job. However, any mistake on his part would affect the land-holder's right inasmuch as the ceiling area is fixed on the basis of different classes of lands in different local areas. If a parcel of seasonally irrigated land is styled by the competent officer as that of perennially irrigated land in respect of the lands held by a land-holder through oversight or omission, the ceiling area for determination of the excess land beyond it will vary on the basis of such certificate issued by the competent officer styling seasonally irrigated lands as perennially irrigated lands. 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.
5. Besides, as pointed out hereinabove, the certificate issued by the competent officer for the purpose of Section 2(6) of the Act is made a conclusive piece of evidence. It cannot be gainsaid that such certificate would affect the land-holder's holding of lands for the purpose of finding out whether or not his such holding is in excess of the ceiling area fixed or prescribed under the Act. It would prejudicially affect him if collection of data with respect to the class of the lands held by him is tainted with some error or mistake on the part of the competent officer through omission or oversight.
6. It is a settled principle of law that no party can adversely be affected with respect to his right without affording to him a reasonable opportunity of hearing. As pointed out hereinabove, the certificate issued by the competent officer determining the class of land held by the land holder will be used as a conclusive piece of evidence inter alia to the extent whether or not the land in question is perennially or seasonally irrigated. The ceiling area for the purpose of the Act would vary according to the class of land inter alia to the extent whether it is perennially or seasonally irrigated. The certificate of the competent officer when made a conclusive piece of evidence would certainly affect, often adversely, the right of the land-holder with respect to the class of lands held by him within the meaning of Section 2(6) of the Act for the purposes of the ceiling area fixed thereunder. 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 Section 2(6) of the Act with respect to the land held by the land-holder. That would also work as a check on any arbitrary exercise of power by the competent officer. I am, therefore, of the opinion that the function of undertaking the inquiry for the purpose of issue of the certificate under Section 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.
7. I am fortified in my view by the unreported ruling of this Court in Special Civil Application No. 3756 of 1983 and another allied matter decided on 24th September, 1985 (Per N.H. Bhatt, J.). The learned single Judge, on examination of the scheme of Section 2(6) of the Act, has, in a different context, come to the conclusion that the competent officer while conducting the inquiry for the purpose of issuing the necessary certificate under Section 2(6) of the Act is performing a quasi-judicial function and is a quasi-judicial authority. I am in respectful agreement with the view expressed by this Court in its aforesaid unreported ruling in Special Civil Application No. 3756 of 1983 and another allied matter decided on 24th September, 1985. Even otherwise, sitting as a single Judge, I am bound by a ruling of this Court given by another single Judge.
7.1 It is an admitted position on record that the certificate issued by the competent officer in the instant case as relied on by the Mamlatdar, for determining the class of land for the purposes of Section 2(6) of the Act was issued without giving any opportunity of hearing to the present petitioner. In that view of the matter, the certificate issued by the competent officer cannot be said to be legal or valid. It cannot be used as a conclusive piece of evidence for determining the class of lands held by the petitioner. Using such piece of evidence which cannot be styled as a conclusive piece of evidence would certainly vitiate the inquiry held by the Mamlatdar and Agricultural Lands Tribunal at Olpad culminating into his impugned order at Annexure 'A' to this petition as affirmed in appeal by the appellate order at Annexure 'B' to this petition and in revision by the decision of the Gujarat Revenue Tribunal at Annexure 'C' to this petition. The impugned order at Annexure 'A' to this petition cannot, therefore, be sustained in law.
8. In the result, this petition is accepted. The impugned order passed by the Mamlatdar and Agricultural Lands Tribunal on 25th November, 1981 under Section 21 of the Act as affirmed in appeal by the order passed by the Dy. Collector at Annexure 'B' to this petition and in revision by the decision of the Gujarat Revenue Tribunal at Annexure 'C' to this petition is quashed and set aside. This judgment of mine, however, shall not preclude the Mamlatdar and Agricultural Lands Tribunal at Olpad to undertake any fresh inquiry under Section 20 of the Act after obtaining the necessary certificate from the competent officer for the purpose of Section 2(6) of the Act with the direction that the Mamlatdar and Agricultural Lands Tribunal at Olpad should see to it that the competent officer issues the required certificate only after giving an opportunity of hearing to the petitioner. Rule is accordingly made absolute to the aforesaid extent with no order as to costs on the facts and in the circumstances of the case.