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[Cites 15, Cited by 0]

Gujarat High Court

Dudiben Nagbhai vs State Of Gujarat on 18 November, 2019

Author: J.B.Pardiwala

Bench: J.B.Pardiwala

          C/LPA/331/2010                                          ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 331 of 2010
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 9615 of 1996

==========================================================
                           DUDIBEN NAGBHAI & 1 other(s)
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1,2
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1,2
MS JIRGA JHAVERI, AGP(1) for the Respondent(s) No. 1,2
==========================================================

    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI

                                 Date : 18/11/2019

                                   ORAL ORDER

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 This appeal under clause 15 of the Letters Patent Act is at the instance of the original petitioners of a Special Civil Application and is directed against the judgement and order passed by the learned Single Judge dated 6th November 2009 in the Special Civil Application No.9615 of 1996, by which the learned Single Judge rejected the petition preferred by the original petitioners and thereafter affirmed the order passed by the Gujarat Revenue Tribunal.

2 We need not state the facts giving rise to this appeal as a neat question of law no longer res integra is involved in the matter. The learned Single Judge, while rejecting the petition, observed as under:

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"The present petition has been filed by the petitioners under Art. 226 & 227 of the Constitution of India challenging the order passed by the Gujarat Revenue Tribunal (hereinafter referred to as 'the Tribunal') at Annex. C on the grounds mentioned in the memo of the petition. It has been prayed, inter alia, that the order passed by the Tribunal in Revision Application No. TEN.B.A.10/94 confirming the order passed by the Dy. Collector, Mahuva in Ceiling Appeal No. 2/93 (Annex. B) may also be set aside.
2. Learned advocate Mr. Adeshra referred to the order and submitted that the impugned order is no order in eye of law as it has only recorded the submissions and has not given the findings. He further referred to sec. 2(17) of the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as 'the Ceiling Act') and submitted that the point which is required to be considered is whether the bid land would be covered under the Ceiling Act. Learned advocate Mr. Adeshra has also stated that therefore the judgment and order passed by this Court in a group of matters being Special Civil Application No. 4515 of 1984 and other matters would not be applicable as only part of the grievance or the contentions would be covered.
3. He has therefore referred to the definition of sec. 2(17) of the Ceiling Act which reads as under:
(17) "land" means­ (I) in relation to any period prior to the specified date, land which is used or capable of being used for agricultural purpose and includes the sites of far buildings appurtenant to such land."

He has, therefore, submitted that the impugned order has not clarified on this aspect while confirming the order passed by the Dy. Collector at Annex. B and therefore it is erroneous.

4. Learned AGP Mr. Amit Patel has submitted that the order passed is just and proper.

5. The first aspect which is required to be considered is that at the time of filing of this petition, in para 18 the petitioners have stated that this petition is identical with Special Civil Application Nos. 1290 of 1983 and 1792 of 1986 which are admitted and these petitions have been heard and disposed of in the same group of petitions by the Division Bench of this Court (Coram: R.K. Abichandani & D.H. Waghela, JJ.) vide judgment and order dated 17.2.2004. The said judgment refers to the scheme and the provisions of the Ceiling Act and has referred to sec. 5, which in turn refers to bid land. After considering the rival submissions, the Court has observed that "the issued raised in these petitions is whether the bid land held by the petitioners could have been declared as surplus land under the Ceiling Act as amended in 1974." The Division Bench, after considering all the submissions which are now sought to be canvassed, has, after considering the scheme of the Ceiling Act, rejected those petitions.

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6. In the facts of the present case also, the contentions which learned advocate Mr. Adeshra has raised are identical and therefore would be covered by the judgment of the Division Bench as stated and the issue is thus settled and/or decided by the Division Bench of this Court. The judgment of the Division Bench is also binding on this Court and, therefore, the submissions made by learned advocate Mr. Adeshra cannot be accepted.

7. Another facet of the argument is that the Tribunal has not considered this aspect. Even if it is accepted on the face value, still, the issue is settled in light of the observations made by the Division Bench of this Court and therefore the present petition also deserves to be rejected in the same manner.

8. The petition, accordingly, stands rejected. Rule is discharged with no order as to costs.

9. Interim relief granted earlier is ordered to be continued for a period of six weeks."

3 Thus, the learned Single Judge relied upon a Division Bench decision of this Court dated 17th February 2004 in which this Court took the view that the bid land can be declared as surplus land under the Ceiling Act as amended in 1974.

4 The appellants - original petitioners being dissatisfied with the judgement and order passed by the learned Single Judge came before this Court with the present appeal.

5 On 10th March 2010, this Court passed the following order while admitting this appeal:

"Admit.
To be notified for final hearing after the Honourable Supreme Court decides the petition for Special Leave to Appeal (C) No.14182 of 2004."

6 The issue now has been settled by the Supreme Court in the case of Nagbhai Najbhai Khackar vs. State of Gujarat reported in (2010) 10 SCC 594. The short question before the Supreme Court which arose Page 3 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER for determination in the batch of cases was whether the bid lands were required to be taken into consideration for the purpose of land ceiling under the Gujarat Lands Ceiling Act, 1960, as amended vide Act 2 of 1974, which came into force from 1st April 1976. The Supreme Court observed as under:

"10 According to the learned counsel, the definition of "land" stood specifically amended by the Amendment Act (No. 2 of 1974) to include "bid lands" of Girasdars and Barkhalidars in Section 2(17)(ii)(c). According to the learned counsel, the Statement of Objects and Reasons for enacting the Amending Act also made it clear that the Amendment Act stood enacted for including the bid lands of Girasdars and Barkhalidars within the definition of "land". Therefore, according to the learned counsel once the definition of "land" stood specifically amended to include "bid lands", without limiting the same to cultivable bid lands, the specific intention of the Legislature must be given its full meaning. By the said Amending Act No. 2 of 1974, according to the learned counsel, a proviso was also inserted after Section 5 which increased the ceiling limit in respect of "desert" and hilly areas by 12 1/2 per cent which indicates that even deserts and hilly areas have been sought to be brought within the ambit of the Agricultural Ceiling Act. Therefore, the said proviso negates the contentions of the appellants that only such bid lands which were "capable of agriculture" or which abound in grass alone were meant to be covered under the Act.
11 It was further submitted that the lands in question are in fact "agricultural" lands. They survived acquisition under the earlier three Acts only because they were "bid lands" which by definition under those Acts were lands "being used" by Girasdars/ Barkhalidars for grazing cattle. That, under the Ceiling Act, Section 2(1) defines the use of land for the purposes of grazing cattle as agricultural purpose and thus, according to the learned counsel, by their very definition "bid lands" are capable of being used for agricultural purpose, namely, grazing cattle.
12 On the question of classification of lands, learned counsel submitted that Sections 4 and 5 of the 1960 Act expressly made two­fold division by dividing the State into local areas as well as classes of lands. For the ceiling area in Schedule I, the land had to fall under one of the classes, namely, perennially irrigated land, seasonally irrigated land, superior dry crop land and dry crop land which have been defined in Explanation I to Section 2(6) of the Act. Learned counsel submitted that there is no merit in the argument of the appellants that "bid land" is not specified in the class of lands under Section 2(6) and that even if bid lands were included in "dry crop land" it must be only such bid lands which "abound in grass"
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which would fall under the 1960 Act. According to the learned counsel the argument of the appellants is fallacious as it overlooks the specific legislative intent.

13 In this connection, learned counsel submitted that from a bare reading of the definition of "dry crop lands" in Explanation I(e) it was clear that the said definition stood in two parts, namely, (i) "land other than the land specified in paragraphs (a) to (c) and" (ii) "grass land". Thus, according to the learned counsel, the first part of the definition included all lands other than those specified in paragraphs (a) to (c) provided they fall under the definition of land under Section 2(17). According to the learned counsel, the reason why "grass land" had to be separately defined in clause (e) was because under the proviso to Section 5 a further distinction was made between grass land included within "dry crop land" and other barren/desert/drought­prone areas which also fell within "dry crop land". Further, according to the learned counsel, under clause (f) to the said Explanation under Section 2(6), "grass land" and not all "dry crop lands" were deemed to be rice lands in certain situations which also necessitated a separate definition of grass lands.

14 Finally, learned counsel submitted that once bid lands fall within the ambit of the Agricultural Ceiling Act by virtue of the specific inclusion of all bid lands in Section 2(17), the ambit of inclusion should not be read down by reference to the classification under Section 2(6) of the 1960 Act.

15 For deciding this matter, we quote hereinbelow Section 2(6) of 1960 Act (unamended) in juxtaposition with the 1960 Act (as amended by the Amending Act 2 of 1974) :

Gujarat Agricultural Lands Ceiling Act, 1990 Unamended Act (Pre­1974) Amended Act (post ­1974) (Substituted by Gujarat 2 of 1974) "2. Definitions: In this Act, unless the "2. Definitions - In this Act, context requires, otherwise ­ unless the context requires otherwise­ * * * * * * (6) "class of land" means any of the (6) "class of land" means any of following classes of land, that is to the following classes of land, that say :­ is to say :­
(i) perennially irrigated land; (i) perennially irrigated land;

(ii) seasonally irrigated land; (ii) seasonally irrigated land; 

(iii) dry crop land;                     (iii) superior dry crop land;
(iv) rice land;                          (iv) dry crop land;

Explanation ­ For the purpose of this Explanation I ­ For the purpose of Page 5 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER Act ­ this Act ­ * * * * * *

(d) rice land means rice land situated (d) "rice land" means land which in a local area where the average is situated in a local area where rainfall is not less than 35 inches a the average rainfall is not less year, such average being calculated on than 89 centimeters a year such the basis of the rainfall in that area average being calculated on the during the five years immediately basis of rainfall in that area preceding the year 1959 but does not during the five years immediately include perennially or seasonally preceding the year 1959 and irrigated land used for the cultivation which is used for the cultivation of rice; of rice or which, in the opinion of the State Government, is fit for the cultivation of rice but does not include perennial or seasonally irrigated land used for the cultivation of rice;

(e) "dry crop land" means land other (e) "dry crop land" means land than perennially or seasonally other than the land specified in irrigated or rice land and includes paragraphs (a) to (c) and grass grass land, that is to say, land which land, that is to say, land which abounds in grass grown naturally and abounds in grass grown naturally which is capable of being used for and which is capable of being agricultural purposes; used for agricultural purposes;

(f) grass land referred to in para (e) (f) "grass land"referred to in para shall, notwithstanding anything (e) shall, notwithstanding contained in that paragraph, be anything contained in that deemed to be rice land, if, is it situated paragraph, be deemed to be rice in a local area referred to in clause (d) land if it is situated in a local and in the opinion of the State area referred to in para (d) and Government it is fit for the cultivation in the opinion of the State of rice."(emphasis supplied) Government it is fit for the cultivation of rice;"

(emphasis supplied)

16 We also quote hereinbelow the relevant provisions of Section 2(17) of the 1960 Act (Post­1974) which reads as follows :

"2(17) "land" means ­
(i) in relation to any period prior to the specified date, land which is used or capable of being used for agricultural purpose and includes the sites of farm buildings appurtenant to such land;
(ii) in relation to any other period, land which is used or capable of being used for agricultural purposes, and includes ­ Page 6 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER * * *
(b) the lands on which grass grows naturally;
(c) the bid lands held by the Girasdars or Barkhalidars under the Saurashtra Land Reforms Act, 1951 (Sau. Act XXV of 1951), the Saurashtra Barkhali Abolition Act, 1951 (Sau. Act XXVI of 1951), or the Saurashtra Estates Acquisition Act, 1952 (Sau. Act III of 1952), as the case may be."

17 We also quote hereinbelow Section 5 of the 1960 Act (Post­1974) with the proviso which was not there prior to the amendment :

"5. Ceiling areas­ (1) Subject to the provisions of sub­sections (2) and (3), in relation to each class of local area as specified in Schedule I, the ceiling area with reference to each class of land shall be as specified in the said schedule against the respective class of local area;
Provided that in areas which in the opinion of the State Government are desert or hill areas of drought­prone areas and which are specified by the State Government from time to time, by notification in the Official Gazette, as such areas, the ceiling area with reference to dry crop land shall be such area as is twelve and a half per cent more than the ceiling area as specified with reference to dry crops land against the class of local area in which the said areas fall, provided however that such ceiling area shall in no case exceed an area of 21.85 hectares (54 acres), and for the purpose of determining whether any area is a desert or hill area or a drought­ prone area regard shall be had to the soil classification of the land, the climate and rainfall of the area, the extent of irrigation facilities in the area, the average yield of crop and the agricultural resources of the area, the general economic conditions prevalent therein and such other factors.
(2) Where a person holds land consisting of different classes in the same class of local area, then for determining the question whether the total land held by him is less than, equal to, or more than, the ceiling area, the acreage of each class of land held by such person shall be converted into the acreage of dry crop land on the basis of the proportion which the ceiling area for the class of land to be so converted bears to the ceiling area for dry crop land.
(3) Where a person holds, lands, whether consisting of different classes of land or not, in different classes of local areas, the question whether the total land held by him is less than, equal to, or more than, the ceiling area, shall be determined as follows, that is to say ­ Page 7 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER
(i) the acreage of each class of land held by the person in each class of local area shall be first converted into the acreage of dry crop land in that local area in accordance with sub­section (2) and the total acreage so arrived at shall be expressed in terms of a multiple or, as the case may be, fraction of such ceiling area;
(ii) the multiple or fraction so expressed in the case of each of the local areas shall be added together :
(iii) the person shall be deemed to hold land less than equal to, or more than, the ceiling area according as the sum total of the multiples and fractions under clause (ii) is less than equal to, or more than one" (emphasis supplied)

18 The short question which is inborn in this batch of cases concerns applicability of the Gujarat 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 oversight, 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 agricultural purpose and consequently "bid lands" which are uncultivable waste lands cannot be included in Explanation I(e).

19 We find no merit in this argument. The definition of "land" is specifically amended by the Amendment Act 2 of 1974 to include "bid lands" of Girasdars or Barkhalidars in Section 2(17)(ii)(c). The Statement of Objects and Reasons of the Amending Act also makes it clear that there was a specific legislative intent of including "bid lands" of Girasdars or Barkhalidars within the definition of "land". This inclusion does not make any distinction between cultivable and uncultivable bid lands. The insertion of bid lands in Section 2(17) is without any such qualification. Therefore, this specific intent of the Legislature must be given its full meaning. If the argument of the appellants is to be accepted, it would defeat the very purpose of the 1960 Act because in that event a holder could hold lands to an unlimited extent by including waste lands in drought­prone areas, hill areas and waste lands within their holdings.

20 There is one more reason for not accepting the argument of the appellants. The subject lands survived acquisition under the 1952 Act only Page 8 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER because they were "bid lands" which by definition under those Acts were treated as lands being used by the Girasdars for grazing cattle (see Section 2(a) of the 1952 Act). Now, under the present Ceiling Act, Section 2(1) defines the use of land for the purpose of grazing cattle as an agricultural purpose. Thus, "bid lands" fall under Section 2(1) of the Ceiling Act. This is one more reason for coming to the conclusion that the Ceiling Act as amended applies to "bid lands".

21 It is also important to note that under Section 5(1) of the 1952 Act all lands saved from acquisition had to be "bid lands" which by definition under Section 2(a) of the 1952 Act were the lands being used by a Girasdar or a Barkhalidar for grazing cattle or for cutting grass. If the lands in question were put to any other use, they were liable to acquisition under Section 5(2). Because the subject lands were used for grazing cattle, they got saved under the 1952 Act and, therefore, it is now not open to the appellants to contend that the subject lands are not capable of being used for agricultural purpose.

22 Now, coming to the question of interpretation of the definition of the words "dry crop land" in Explanation I(e), one finds that the definition has two parts, namely, (i) "land other than the land specified in paragraphs (a) to (c)" and (ii) "grass land". Thus, the first part includes all lands other than those specified in paragraphs (a) to (c). Therefore, once the subject land falls in the first part of definition of the word "dry crop land" which land comes under Section 2(17) and which falls outside paragraphs (a) to (c) then such lands would fall within the definition of the words "dry crop land". Further, there are two reasons why "grass land"

stood separately defined in Explanation I(e). Firstly, under the proviso to Section 5, which is also inserted by the Amending Act, a distinction is made between "grass lands" included within "dry crop land" and "grass lands" falling in the desert or hill areas of drought­prone areas for fixing the ceiling of dry crop land in those areas. Secondly, under clause (f) to Explanation I, "grass land" and not all "dry crop land" is deemed to be rice land in certain situations.

23 The proviso to Section 5 itself makes it clear that by the Amending Act of 1974 the Legislature was placing a ceiling even on desert and hill areas. The proviso inter alia states that the ceiling limit with reference to "dry crop land" shall be 12 ½ per cent more than that specified in the Schedule which makes it clear that the Legislature intended to include even desert and hills in drought­prone areas within the definition of "dry crop land". Once such lands are used for grazing of cattle, Section 2(1) of the Ceiling Act would kick in and consequently the "bid lands" would stand covered by the Ceiling Act. The definition of "dry crop land" under Section 2(6) is relevant for the purpose of ascertaining the extent of ceiling limit under Schedule I. It is important to note that the subject lands got saved from acquisition under the 1952 Act only because the appellants were the Page 9 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER holders of "bid lands" which were put to use for grazing of cattle or cutting of grass. It is these very lands which are now sought to be covered by the 1960 Act, as amended.

24 We also do not find any merit in the argument advanced on behalf of the appellants that the Legislature unwittingly through over­sight left out the word "includes" in the definition of "dry crop land" in Explanation I(e). If one looks at the Pre­1974 Act under Section 2(6) which defined "class of land", it covered four items, namely, perennially irrigated land, seasonally irrigated land, dry crop land and rice land, whereas under the Post­1974 Act, rice land has been deleted from the "class of land". Under the Pre­1974 Act, "dry crop land" was defined by clause (e) of Explanation to mean "land other than perennially or seasonally irrigated or dry crop land or rice land" and it included "grass land", whereas under Post­1974 Act, not only the word "includes" but even the words "rice land" do not find place in the definition of "dry crop land" in clause (e) of Explanation I. 25 One of the reasons for this structural change is indicated by the judgment of the Gujarat High Court in the case of Krishnadas Vithaldas Sanjanwala v. The State of Gujarat and Ors. [(1966) 7 GLR 244] in which it has been laid down that ordinarily "grass lands" would be "dry crop lands" within the meaning of clause (e) of Explanation to Section 2(6) of Pre­1974 Act as the definition of "dry crop land" included "grass land", however, in a given case the Tribunal could promote the grass land by declaring it to be a rice land falling under Section 2(6)(iv) (see Explanation I(f) to Section 2(6) of the Pre­1974 Act).

26 According to the said decision, which has been consistently followed thereafter, "grass land" of the kind mentioned in clause (e) could be promoted to the category of rice land if the Tribunal found that such grass land was situated in a local area referred to in clause (d) and if in the opinion of the State Government such land was found fit for cultivation of rice. Therefore, the promotion of the grass land to the category of rice land, according to the said decision of the High Court, was dependent upon an objective fact which was justiciable and the determination of a subjective fact by the State Government. Consequently, clause (d) and clause (e) of the Post­1974 Act are drastically different from the structure of the said clauses in the Pre­1974 Act. There is no merit, therefore, in the contention advanced on behalf of the appellants that the Legislature had through over­sight omitted the word "includes" from Explanation I(e).

27 For the afore­stated reasons, we find no merit in this batch of cases. Accordingly, the same are dismissed with no order as to costs."

7 In view of the aforesaid decision of the Supreme Court, the issue Page 10 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019 C/LPA/331/2010 ORDER has been now set at rest. There is no scope of any further argument in the matter.

8 In the aforesaid view of the matter, the learned Single Judge could not be said to have committed any error much less any error of law in passing the impugned judgement and order.

9 In the result, this appeal fails and is hereby dismissed..

(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) CHANDRESH Page 11 of 11 Downloaded on : Thu Nov 21 02:31:03 IST 2019