Gujarat High Court
Balbhadrasinhji I Jhala vs Jayendrakumariba on 27 April, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/5989/1988 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5989 of 1988
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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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 or any
order made thereunder ?
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BALBHADRASINHJI I JHALA
Versus
JAYENDRAKUMARIBA
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Appearance:
MR DD VYAS(990) Senior Advocate for the PETITIONER(s) No. 1
(MR AJ SHASTRI)(827) for the RESPONDENT(s) No. 3
DECEASED LITIGANT(100) for the RESPONDENT(s) No. 1
MR JK SHAH, AGP for the RESPONDENT(s) No. 4,5,6,7
MR DA SANKHESARA(5955) for the RESPONDENT(s) No. 1.1,1.2,1.3,1.4
MR PRATIK K KHUBCHANDANI(8441) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 27/04/2018
ORAL JUDGMENT
1. By way of present petition preferred under Article 227 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ and order and to quash and set aside the judgment and order dated 15.02.1986 passed by the learned Mamlatdar and Agricultural Land Tribunal, Patdi, order dated 30.06.1986 passed by the Deputy Collector and order dated 19.08.1988 passed by the learned Gujarat Revenue Tribunal in Revision Application No. TEE-BA-852-1986.
Page 1 of 17C/SCA/5989/1988 JUDGMENT
2. The brief facts of the petition are as under:
2.1 It is the case of the petitioner that the petitioner was declared as an erstwhile ruler of the State of Lakhtar by the President of India after the death of his father late Shri Indrasinhji Jhala somewhere in the year 1970. The respondents no.1 and 2 are the daughter of late Shri Indrasinhji Jhala ie., sisters of the present petitioner, whereas the respondent no.3 is the widow of late Shri Indrasinhji Jhala and the step mother of the petitioner. Therefore, the respondents no. 1 to 3 are legal heirs of deceased Thakore saheb. It is also stated that there was a dispute amongst legal heirs of the deceased Thakore saheb with regard to the share in the property and the litigation was also pending amongst the family members, which went up to the High Court, and ultimately, this Court has appointed the present petitioner as receiver of the said property. It is the say of the petitioner that in that capacity, he filed Form No. 2 describing the lands of the deceased Thakore saheb alongwith his affidavit. In the said Form no.2, the following lands were described.
1 Karan of Lakhtar 52.03 acres 2 Weed Land of Lakhtar 267.29 acres 3 Land situated in Lakhtar on Survey 24.16 acres No. 400, 719/3, 719/4 and 716 4 Land of Navagam Than, Taluka: 1493.27 acres Chotila's weed 2.2 The petitioner further submits that accordingly on 09.09.1982, the Mamlatdar In-charge of Lakhtar Taluka had issued requisite notice under the provisions of Agricultural Land Ceiling Act, and thereafter, the further proceedings were taken up in the court of Additional Mamlatdar and Agricultural Page 2 of 17 C/SCA/5989/1988 JUDGMENT Land Ceiling Tribunal at Patdi. The said proceedings were registered as Land Ceiling Case No. 123 of 1976-77.
Subsequently, by an order dated 15.02.1986, the Additional Mamlatdar and Agricultural Land Ceiling Tribunal at Patdi decided the said land ceiling case and held that on 24.01.1971, the petitioner was holding the land admeasuring 1960.36 acres and therefore, conclusion was drawn that the petitioner is entitled to have the land admeasuring 54 acres only and the remaining lands admeasuring 1906.36 acres is declared as excess land.
2.3 Being aggrieved by and dissatisfied with the said judgment, an appeal was preferred before the learned Deputy Collector, Dhrangadhra, which was numbered as 40 of 1985-
86. The said appeal was preferred by the petitioner under section 35 of the Gujarat Agricultural Land Ceiling Act. Ultimately, the said appeal came to be dismissed on 30.06.1986, and thereby, the order passed by the Mamlatdar and Agricultural Tribunal was ordered to be confirmed.
2.4 Being aggrieved by and dissatisfied with the said order passed by the learned Deputy Collector, Dhrangadhra dated 30.06.1986, revision application No. TEE-BA-852 of 1986 was preferred by the petitioner. Learned Gujarat Revenue Tribunal, by its judgment and order dated 19.08.1988, dismissed the said revision application of the petitioner, confirmed the order passed by the learned Deputy Collector, Dhrangadhra.
3. Being aggrieved by and dissatisfied with aforesaid orders, the petitioner has preferred present petition mainly on the ground that the petitioner was declared erstwhile ruler of State of Lakhtar by the President of India after the death of his Page 3 of 17 C/SCA/5989/1988 JUDGMENT father-late Shri Idrasinhji Jhala, and therefore, in the said capacity and under the Special act, the property of the petitioner was considered as private property by the officers of the Central Government and by the President of India, and therefore, the provisions of Land Ceiling Act are not applicable to the land in question. It is submitted that all the authorities below without properly appreciating the specific fact, passed the impugned orders and declared the land as surplus.
4. Heard learned advocates for the respective parties.
5. The main ground which is projected before this Court by Senior Advocate Mr. D.D. Vyas appearing for the petitioner is that the petitioner was appointed as receiver in a litigation, which was pending amongst the family members and in the capacity of receiver, he submitted an application before the Mamlatdar and Agricultural Land Tribunal on behalf of the legal heirs of deceased Indrasinhji Jhala. According to learned senior advocate Mr. D. D. Vyas, Mamlatdar and Agricultural Land Tribunal has not properly appreciated the factual aspects about the share of each family member while calculating and declaring surplus land. In other words, requisite units to the legal heirs, which were required to be granted in accordance with law, were not granted by the Mamlatdar and the application of the petitioner is treated as a single application and applicants are treated as a single applicant. The rest of the legal heirs though represented by the petitioner in a capacity of receiver was totally ignored by the Mamlatdar while taking decision of declaring the surplus land. It is further submitted that the said decision of the Mamlatdar was ex-facie and bad in law, and therefore, appeal was preferred before the Deputy Collector. But ultimately, the appellate authority has also Page 4 of 17 C/SCA/5989/1988 JUDGMENT miserably failed in considering the aforesaid legal as well as factual aspect in the matter. It is further submitted that being aggrieved by and dissatisfied with the said order, the petitioner approached the learned Gujarat Revenue Tribunal by way of filing revision application and various contentions were raised including the contentions raised before the Mamlatdar and Agricultural Land Tribunal as well as Deputy Collector. However, the revisional authority ie., Gujarat Revenue Tribunal has also, without properly appreciating the factual aspect involved in the matter, dismissed the revision application confirming the order declared by the Mamlatdar and Agricultural Land Tribunal and Deputy Collector. It is further submitted that petitioner is having good case on merits, however, the authorities right from Mamlatdar and Agricultural Land Tribunal up to learned Gujarat Revenue Tribunal has not properly appreciated the factual as well as legal aspects of the matter, and therefore, it appears that the order passed by the learned Gujarat Revenue Tribunal may be set aside and the Mamlatdar and Agricultural Tribunal direction to grant individual units of each legal heirs of the deceased Indrasinhji Jhala.
6. Learned Assistant Government Pleader appearing on behalf of the State, while opposing the present petition and justifying the order passed by the Mamlatdar and Agricultural Land Tribunal, Deputy Collector as well as learned Gujarat Revenue Tribunal, submits that the order passed by all the three authorities are in accordance with law and all the three authorities including the learned Gujarat Revenue Tribunal has passed the order after careful consideration of the factual as well as legal aspects.
Page 5 of 17C/SCA/5989/1988 JUDGMENT
7. Learned AGP, while referring affidavit-in-reply filed by the respondent State Government, submits that the parcel of agricultural land covered under the Gujarat Agriculture Land Ceiling Act 1960 is consisting of Bid Land and the said issue is settled by the Hon'ble Supreme Court in the reported decision 2010(10) SCC 594. It is submitted that the Gujarat Revenue Tribunal has rightly held that after amending the Act of 1972, Bid Land was also included in the definition of the word "land" by amending sub section (2) of Section 17 of the Act. Learned Assistant Government Pleader further submits that the petitioner has to file application for approval before the Collector under Section 8 of the Gujarat Agricultural Land Ceiling Act, 1960 in respect of any transaction made between 24.01.1971 to 31.03.1976. It is submitted that an application by the mother of the petitioner was made before the Assistant Collector, Dhranghdhra, which was rejected by the Assistant Collector on 27.02.1984, which is not challenged by the petitioner till date. It is also submitted that the contentions of the petitioner that land admeasuring Acre 120-38 guntha of Taluka Lakhtar was sold by the petitioner long back is not true as the petitioner has never produced any documentary evidence to show that the purchaser was in possession of the said land before 24.01.1971. It is submitted that even looking to the revenue record and 7/12 extract of survey no. 434/1, name of the purchaser was mutated in the year 1975-76 and possession was taken by the purchaser in the year 1975-76 and there is no valid sale deed in favour of the purchaser, and therefore, the said contention raised by the petitioner is not tenable. It is further submitted that the petitioner was provided adequate opportunity by all the authorities to put up his case, Page 6 of 17 C/SCA/5989/1988 JUDGMENT and thereafter, the decisions were taken by all the three authorities, and therefore, there is no infirmity recorded by the Gujarat Revenue Tribunal as well as two lower authorities.
8. In response to above submissions of learned AGP, learned Senior Counsel Mr. D. D. Vyas for the petitioner submits that the contention raised by the learned AGP in the affidavit in reply filed by the respondent State Government is with regard to permission required under Section 8 is considered by this court in its oral judgment dated 7th August 1984 rendered in Special Civil Application No. 2436/1978. While referring page no. 9 of the said Judgment, it is submitted that the question with regard to permission under Section 8 is dealt with by this court and lastly, the petition was allowed and the decisions of the Deputy Collector and Gujarat Revenue Tribunal were ordered to be quashed and set aside.
9. Learned senior advocate Mr. D. D. Vyas for the petitioner submits that along with present petition, requisite documentary evidence and material is produced to make out the case for getting five units under the Agricultural Land Ceiling Act. It is not in dispute that the petitioner has applied in capacity of receiver, and therefore, each of the family members is entitled to have independent unit at the time of making required application for the purpose of considering the case under the Agricultural Land Ceiling Act.
10. It is also pointed by the learned AGP that the State Authority has taken note of the legal heirs and family members of the deceased Indrasinhji Jhala. However, the case was not considered in favour of any of the legal heirs by extending the Page 7 of 17 C/SCA/5989/1988 JUDGMENT benefit of individual units and treated each of them as independent applicant. Learned AGP further submits that under Section 2 (21) of the Gujarat Agricultural Land Ceiling Act, 1960 holding of land in the joint name should be seen as hold by one person only.
11. In response to the above contention, learned senior advocate Mr. Vyas has drawn attention of this court to the decision given by the Hon'ble Apex Court in the case of Ramanlal Bhailal Patel v. State of Gujarat, reported in 2008(3) GLR 1841.
12. Learned senior advocate Mr. Vyas further submits that the authorities below ought to have appreciated that all the agricultural lands belonged to late Thakore Sahab, who died in the year 1970, leaving behind the petitioner and opponent Nos.1 to 3 as the heirs and with respect to the rights in the properties, Special Civil Suit No.21 of 1971 and Civil Suit No.58 of 1976 were filed in the Court of Civil Judge (S.D.), Surendranagar by respondent No.3 and the petitioner respectively. Against the judgment and order passed in Special Civil Suit No. 21 of 1971, First Appeal No.177 of 1983 is pending before this Court and Civil Suit No.58 of 1976 is pending in the Court of Civil Judge (S.D.) Surendranagar, since the said litigations are not finally decided, it would not be possible to find out what would be the share of the petitioner as also respondent Nos.1,2 and 3 and in view of that, the lower authorities ought not have finally decided the matters.
13. It is submitted that admittedly, the properties belonged Page 8 of 17 C/SCA/5989/1988 JUDGMENT to deceased Indrasinhji and he died leaving behind the petitioner, who is the son, respondent No.1 and 2 are the daughters, and the respondent No.3 is the widow of the deceased Indrasinhji. In view of the settled legal position, the order passed by the lower authorities that altogether they are entitled to hold one unit is patently illegal and bad. Each one would be entitled to one unit of share.
14. In view of the fact that even in Civil procedure the transfer of land at Karanbag admeasuring 52.03 and Survey Nos.400, 719/3, 719/4 and 719/6 as having been sold by respondent No.3, the same could not have been attributed to the petitioner. This aspect has been completely ignored by the authorities below.
15. It is submitted by the learned senior advocate that the land admeasuring 120.38 Acres of village Charad, bearing Survey No.434/1 was sold prior to 1962 and the same has been referred and recognized in case No.17/63-64 of July, 10, 1968. It is submitted that much prior to the Amendment Act, the purchasers were in actual possession.
16. It is further submitted that lands of Chanka is treated as agricultural land in light of judgment of Apex Court, but, there is nothing on record to show that these bid lands are capable of being used as agricultural purpose. Even if on considering the above land, is treated as agricultural land in light of Apex Court's judgment, it is submitted that the lands are private properties of the petitioner in light of White Paper Covenant and the provisions of Land Ceiling Act will not apply to the said lands.
Page 9 of 17C/SCA/5989/1988 JUDGMENT
17. Regard being had to the above submissions and looking to the prayers clause of the present case, it appears that the petitioner is the legal heir and representative of late Shri Indrasinhji Jhala, who was erstwhile Ruler of State of Lakhtar and he was declared as an erstwhile Ruler by the President of India and after his death somewhere in the year 1970, present petitioner was also declared as erstwhile Ruler of State of Lakhtar. Therefore, in the said capacity and under the Special Act, the properties of the petitioner was considered to be the private properties by the Central Government as well as by the President of India. Therefore, it is a clear fact that the said land cannot be considered under the provisions of Land Ceiling Act, as the said Act is not applicable to the land of the present petitioner. Despite this fact, all the Authorities below have misdirected themselves by passing the orders and declaring the land of the petitioner as surplus land by wrongly applying the provisions of Land Ceiling Act, without considering the fact that Thakore Saheb was the Ruler of Lakhtar State, who had acceded the State to the United State of Kathiawar by a Covenant in which certain properties were declared as private properties, which is supported by the copy of White Paper, which was published by the Government of India along with duly authenticated map which are annexed at Annexure R-I with the further affidavit. Relevant extracts of the Covenant are as under:
"6. The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by the Raj Pramukh of the United State by an Instrument supplementary to this Instrument.Page 10 of 17
C/SCA/5989/1988 JUDGMENT
7. Nothing in this Instrument shall empower the Dominion Legislature to make any law for the United State authorising the compulsory acquisition of land for any purpose, but should the Dominion for the purpose of a Dominion Law, which applies in the United State deem it necessary to acquire any land the Raj Pramukh of the United State shall at the request and at the expense of the Dominion Government acquire the land or if the land belong to the United State trasnfer it to them on such terms as may be agreed or in default of agreement, determined by an arbitrator to be appointed by the Chief Justice of India."
In view of the aforesaid provisions of Covenant, the land in question is a private property of the Ruler, to which the provisions of the Agricultural Land Ceiling Act shall not be applicable.
18. Moreover, there is nothing on record to show that the bid lands is capable of being used for agricultural purpose. Even if the above land is treated as agricultural land in light of Apex Court's judgment, the lands in question being private properties of the petitioner in light of above referred provisions contained in Covenant as discussed hereinabove, the provisions of the Land Ceiling Act shall not be applicable.
19. It is also the case of the petitioner that several properties have been sold and transferred on 24.01.1971 and 7.03.1955, which are in possession with the concerned transferees. In view of the judgment reported in Special Civil Application No. 2486 of 1978 dated 7.08.1984, wherein it is held that amending Act was published on 1.04.1976 and bill of proposed amendment was published on 20.12.1972 and therefore it Page 11 of 17 C/SCA/5989/1988 JUDGMENT cannot be presumed that concerned persons were in know of proposed amendment and transfer was to defeat objects of ceiling amendment Act and hence the aforesaid transactions were not illegal, moreso where no notice was issued to concerned transferee. Since the aforesaid land were in possession concerned transferee, it could not be included in the holding of the petitioner, for which the petitioner placed reliance on the judgment reported 2006 (4) GLR 3389 inter alia that in view of Section 2 (15) in order that land to be included in holding of person, he is required to be in actual possession of said land and the land were not in possession of the petitioner or with the heirs. That the aforesaid contentions were raised, however, the Authorities below have failed to appreciate such factual and legal position.
20. Moreover, it appears that as there was a dispute amongst the legal heirs of deceased Thakore Saheb with regard to share in the properties for which litigations were initiated which went to this Court and ultimately, this Court appointed the present petitioner as Receiver of the said properties. In that capacity, he filed Form No.2 describing the land of the deceased Thakore Saheb. Thereafter, Mamlatdar of Lakhtar Taluka issued requisite notice under the provisions of Land Ceiling Act of Agricultural Land Ceiling Act and thereafter, Additional Mamlatar and Agricultural Land Ceiling Tribunal at Patdi, passed an order that the petitioner and his family members are entitled to have the land admeasuring 54 Acres collectively and remaining land admeasuring 1906.36 Acres is declared as excess land. Assuming for the time being that the Land Ceiling Act is applicable to the said land, the Authorities had decided that the petitioner and other family members are entitled to Page 12 of 17 C/SCA/5989/1988 JUDGMENT hold only one unit collectively. The order passed by the Mamlatdar is bad in law as the requisite units to the legal heirs which were required to be granted in accordance with law, were not granted by the Mamlatdar as the application of the petitioner is treated as a single application and the applicants, who are legal heirs of deceased Indrasinhji Jhala, were treated as single applicant. The rest of the legal heirs though represented by the petitioner in a capacity of Receiver, were totally ignored by the Mamlatdar while taking decision of declaring surplus land. Since the petitioner was appointed as Receiver of properties, the proceedings were required to be adjudicated with respect to each legal heirs separately, which has not been done by the Authority.
21. This Court has minutely perused the decision referred and relied upon by the learned senior counsel Mr. D.D. Vyas decided by Apex Court in the case of Ramanlal Bhailal Patel v. State of Gujarat, reported in 2008(3) GLR 1841, the relevant paras are as under:
"26. We are fortified in this view by the decision of this Court in Hasmukhalal Dahayabhai vs. State of Gujarat - 1976 (4) SCC 100, wherein this Court had occasion to consider the definition of 'person' in the Ceiling Act, in a different context. It was contended in that case that in view of the definition of 'person' in General Clauses Act, 1897, a central enactment, that is, 'person' shall include any company or association or body of individuals, whether incorporated or not, there cannot be a different definition in the Ceiling Act, and therefore, section 6(2) of the Ceiling Act treating family as a 'person' was unconstitutional. It was pointed out that section 6(2) had the effect of making a person who held land within ceiling limit, to lose part of his/her holding, on marriage to someone Page 13 of 17 C/SCA/5989/1988 JUDGMENT who also held land within ceiling limit. (For example, if a bachelor who was holding 35 acres of land which is within ceiling limit, married someone who held 20 acres, they will together lose 19 acres by reason of the fact that they formed a 'family'). This Court negatived the challenge to the definition of 'person'. In that context this Court observed that the term 'person' is not, strictly speaking, defined in the Act, and the definition merely clarified that the term includes a joint family and did not exclude an individual from being a person in the eye of law. This Court observed that the term 'person' for the purposes of Ceiling Act would include individuals as natural persons as well as group or body of individuals as artificial persons, as also a joint family and a family. This Court proceeded to explain section 6(2) thus:
"16. "We do not find any fixed concept of "person" anywhere. No doubt the concept is wide so that it could be contended that it should not be narrowed down or confined. But does Section 6(2) do that? Section 6(2) does not either disable a husband or wife from owning or holding their separate properties separately. It does not merge or destroy their separate legal personalities. It requires their separate holdings to be grouped together as though they were held by one person only for the purpose of determining the ceiling limit for each member of a family. It may indirectly have the effect of disabling a member of a family from holding land upto the prescribed ceiling limit for a person holding as an individual. In other words, the result is that such a member of a family will have to be content with a holding less than that of an unmarried individual. It has the effect of making it clear that what have to be grouped together are the separate properties of individuals belonging to families other than what are "joint families", in law. It takes in and applies to members of families other than undivided Hindu families. It means that Page 14 of 17 C/SCA/5989/1988 JUDGMENT married persons and their minor children will have to be viewed as though they hold one lot together even though they retain their separate legal personalities and remain competent owners of their separate holdings. It does not affect either their legal status or competence. It does reduce their individual holdings."
Question (ii) - Whether co-owners are together a 'person'?
27. When several persons acquire undivided shares (as contrasted from defined portions) in a property, either equal or unequal, they become co- owners of the property; or where an owner of a property transfers a share in the property to another, the transferee becomes a co-owner along with the original owner. To be termed as co-owners, the right of each owner should be co-ordinate with the other 'owners'. If the right of one is higher in degree than that of the other, there is no co-ownership. For example, a mortgagor and mortgagee are not co-owners. A lessor and lessee are not co-
owners. Whether the shares are equal or not, each co-owner is entitled to be in possession of every part of the property, jointly with the other co-owners. In Sri Ram Pasricha v.
Jagannath [AIR 1976 SC 2335], this Court observed : "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. .."
This Court also relied on the following passage from Salmond's 'Jurisprudence':
"It is an undivided unity, which is vested at the same time in more than one person The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-
ownership has been dissolved into sole Page 15 of 17 C/SCA/5989/1988 JUDGMENT ownership by the process known as partition. Co- ownership involves the undivided integrity of what is owned."
In view of the above observations made by the Hon'ble Supreme Court, the petitioner as well as legal heirs of the deceased Indrasinhji Jhala are to be considered in individual capacity and each heir is entitled to individual unit of the land under the provisions of Land Ceiling Act.
22. In view of the above discussion, the authorities below being fact-finding authorities were required to consider the case of the petitioner and adjudicate the same, which has not been considered properly. Therefore, this Court deems fit to quash and set aside the orders of Mamlatdar, as confirmed by Dy. Collector and Revisional Authority. Hence, the impugned order dated 15.02.1986 passed by the Mamlatdar and Agricultural Tribunal; so also the Order dated 30.06.1986 passed by Deputy Collector and the Order dated 19.08.1988 passed by the Gujarat Revenue Tribunal are hereby quashed and set aside.
23. It is hereby declared that the provisions of the Land Ceiling Act are not applicable to the land in question possessed by the petitioner. Therefore, the petitioner and other legal heirs of deceased Indrasinhji Jhala are hereby entitled to retain individual units.
Likewise, the lands sold by the petitioner in the year 1955 and 1971 i.e. prior to Act came into force, which are in possession of the concerned transferee, shall not be included in the holding of the petitioner and other legal heirs of deceased Indrasinhji Jhala.
Page 16 of 17C/SCA/5989/1988 JUDGMENT Therefore, Authorities below are directed to consider the same and take further necessary steps for rectifying the entries and making mutation entries in favour of the present petitioner and legal heirs of deceased Indrasinji Jhala.
Accordingly, the petition is allowed. Rule is made absolute with no separate order as to the costs.
(P.P.BHATT, J) YNVYAS Page 17 of 17