Gujarat High Court
Kalpataru Land (Surat) Pvt Ltd vs Honourable Gujarat Revenue Tribunal on 7 August, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/12502/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12502 of 2010
With
CIVIL APPLICATION NO. 1 of 2017
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 YES
the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
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KALPATARU LAND (SURAT) PVT LTD
Versus
HONOURABLE GUJARAT REVENUE TRIBUNAL
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Appearance:
MR ND NANAVATY, SR. ADVOCATE for M/S WADIAGHANDY &
CO(5679) for the PETITIONER(s) No. 1
MR PRAKASH JANI, AAG with MR JK SHAH, AGP(1) for the
RESPONDENT(s) No. 2- 5
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 21
MR DILIP L KANOJIYA(3691) for the RESPONDENT(s) No. 7 - 8
MR MIHIR H PATHAK(5261) for the RESPONDENT(s) No. 21
MR MTM HAKIM(1190) for the RESPONDENT(s) No. 9
MR S N THAKKAR(901) for the RESPONDENT(s) No. 6
MS. KRUTI M SHAH(2428) for the RESPONDENT(s) No. 10- 11.1,
12 - 15.1,16 - 20
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1
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Page 1 of 113
C/SCA/12502/2010 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 07/08/2018
ORAL JUDGMENT
1. Leave to amend the date of impugned order.
2. The petitioner, a private limited company registered under the Companies Act namely Kalpataru Land (Surat) Pvt. Ltd., has filed this writ petition under Articles 14, 19, 300(A), 226 and 227 of the Constitution of India and under the provisions of the Gujarat Agricultural Lands Ceiling Act, 1960 (for brevity, 'the Ceiling Act'), the Bombay Land Revenue Code, 1879 and the Gujarat Land Revenue Rules, 1972 (for brevity, 'the Rules'), the Bombay Revenue Tribunal Act, 1957 and the Bombay Revenue Tribunal Regulations, 1954 inter alia with the following prayers in para 14 of the petition:
"A) This Hon'ble Court be pleased to admit and allow this Special Civil Application;
"Amendment carried out as per Court Order dated 13.10.2014"
IN CA NO. 8988/2014.
AA) This Hon'ble Court be pleased to issue a writ of mandamus and/or a Writ in the nature of mandamus and/or any other appropriate Writ, Order or direction under Article - 226 to hold and declare that the provisions of Gujarat Agricultural Land Ceiling Act, 1960 has no application on the subject land and the Respondent authorities may be prohibited from taking any action of any nature whatsoever under the Gujarat Agricultural Land Ceiling Act, 1960 vis - a - vis the land situated at Village Abhava in R.S. No. 506 paiki admeasuring approximately 1603 Acres purchased by petitioners;
B) This Hon'ble Court be pleased in exercise of its powers
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under Article 226 and/or and be pleased to issue a writ of certiorari or mandamus or any other appropriate writ, order or direction, quashing and setting aside the Judgment and Order of the Honourable Gujarat Revenue Tribunal in Revision Case No. TEN BS 104 of 2003 dated 15th May, 2010 at (Ann. :G -
3) in so far as it quashed the order of "the Additional Mamlatdar and Krishi Panch (Ceiling) dated 18th September, 2000 in Ceiling Case No. 1 of 2000 (Ann. 'F')";
"Amendment carried out as per Court Order dated 13.10.2014"
IN CA NO. 8988/2014 BB) This Hon'ble Court be pleased to issue a Writ of Certiorari or Writ in the nature of Certiorari or any other Writ, Order or direction for quashing and setting aside the Order of the Respondent No. 1 dated 15th May, 2010 passed in Revision Case No. TEN BS 104 of 2003 and further be pleased to uphold the Order dated Order dated 18th September, 2000 passed by the Additional Mamlatdar and Krishi Panch (Ceiling) in Ceiling Case No. 1 of 2000";
C) Pending the hearing and final disposal of this Petition, the Hon'ble Court be pleased to stay the operation, implementation and execution of the order and Judgment of the Hon'ble Gujarat Revenue Tribunal in Revision Case No. TEN BS 104 of 2003 dated 15th May, 2010;
D) The Hon'ble court be pleased to grant such other and further reliefs that may be deemed fit and proper in the facts and circumstances of the case;
E) Costs be awarded."
3. It is pertinent to note that initially, in the present petition, only the State of Gujarat was the party respondent, however, subsequently, by virtue of orders dated 13.10.2014 and 09.06.2016 respectively passed in Civil Application Nos. 16765 of 2010, 13509 of 2010, 4838 of 2011 and 7140 of 2015 for joining as party respondents, several private respondents have also been impleaded as the party-
Page 3 of 113 C/SCA/12502/2010 JUDGMENT
respondents.
3.1 It is also pertinent to note that pending the petition, by way of Civil Application No. 16368 of 2017, the respondent - State has challenged the maintainability of the present petition and by order dated 15.02.2018 passed by this Court, it is ordered to be heard and decided together with the main petition.
4. Facts necessary for adjudication of the present petition are as under:
4.1 In the year 1802, Gaikwad, then Ruler of Baroda, granted "Village Abhava", Taluka: Choryasi, District: Surat in Inam to the erstwhile Nawab. Until 1949, Extracts in Form No. VII/VIIA/XII, in the revenue records of Village: Abhava reflected only old Survey No. 400 to be 'Khar', admeasuring 2763 acres, 20 gunthas. Durasti Patrak No. 2 in Form 'B' dated 20.09.1967 notes: "The said village was surveyed in 1950-51, (of Old Survey No. 400) New Survey Nos. 500, 501 and 502, admeasuring 304 acres, 39 gunthas, 2814 acres - 28 gunthas and 176 acres - 20 gunthas respectively; Accordingly plans were prepared. However, since Survey Nos. 500, 501 and 502 were duplicate, they were revised to Survey Nos. 505, 506 and 507 respectively with areas shown in Akar Band and land of Khar Pat which was omitted, hence the present Durasti Patrak". The said Durasti Patrak since then continues to reflect revised Survey No. 506 of Village: Abhava, admeasuring as 2814 acres - 28 gunthas which has been consistently classified as 'Pot Kharaba' or 'Khari Lands'.
There was no agricultural tax leviable / assessable in respect of this revenue survey No. 506. Government Gazetted Notification dated Page 4 of 113 C/SCA/12502/2010 JUDGMENT 17th February 1961 issued by the Khar Land Development Board, Gujarat under Sections 12 and 13(1) of the Mumbai Khar Lands Act, 1948, though reflected Abhava Village as falling within the purview of Bhimpur Khar Land Scheme (Part-1), Taluka: Choryasi, District:
Surat by including only 1.30 acres of government land but excluding survey No. 506 of Village Abhava.
4.2 In 1969, the predecessors-in-title of the petitioner, by six registered Sale Deeds, purchased about 1673 acres of land out of 2814 acres comprising revenue survey No. 506 of Village: Abhava for valuable consideration from the erstwhile holders. The said predecessors had acted in representative capacity on behalf of their kiths and kin and for the purpose, the entire holding of 1673 acres was divided amongst them as recorded in a Family Arrangement dated 18.08.1969. On 05.04.1974, while mutating names of the predecessors-in-title of the petitioner in Inquiry Case No. 2 of 1972, the Mamlatdar, Taluka:
Choryasi, initiated proceedings under Section 37(2) of Bombay Land Revenue Code and ruled the said total lands of revenue survey No. 506 of Abhava belonged to the government under the provisions of Bombay Personal Inam Abolition Act, 1951.
4.3 The aforesaid order of the Mamlatdar was challenged before the Gujarat Revenue Tribunal (for brevity, 'GRT') in Appeal No. 8 of 1974. The GRT, considering all the documentary and other evidence including the report of the government officers and the revenue records, determined that the land is predominantly uncultivable as it is a Kharaba land of salty water of the Arabian Sea and affected by tidal water of river Mindhola and eventually, by order dated Page 5 of 113 C/SCA/12502/2010 JUDGMENT 08.04.1976 held that the predecessors-in-title of the petitioner were the lawful holders of the said total lands.
4.4 On 30.01.1978, Surat Urban Development Authority (SUDA) was constituted under the Gujarat Town Planning and Urban Development Act, 1976, which inter alia covered Village: Abhava.
On 03.06.1985, the predecessors-in-title of the petitioner, by way of abundant precaution, obtained a clarificatory letter from the Assistant Collector, Choryasi Prant to the effect that total lands are 'Pot Kharaba' and 'Khari Land' and therefore, not within the purview of Bombay Tenancy and Agricultural Lands Act, 1948.
4.5 Relying upon the categorical observations of the GRT in its order dated 08.04.1976 and also relying upon the clarificatory letter of the Assistant Collector, Choryasi Prant that the land being Pot Kharaba/Khar land, the petitioner purchased for valuable consideration 1603 acres out of 2814 acres of lands bearing revenue survey No. 506 of Village: Abhava, District: Surat by various registered Sale Deeds between the years 1985 and 1995. Consequently, the name of the petitioner has been mutated in the revenue records as holder / owner thereof. Between GRT's order of 1976 and 1985, there were no outstanding revenue proceedings in respect of the entire revenue survey No. 506 of 2814 acres.
4.6 The subject land was designated as reserved for township under SUDA's second revised Draft Development Plan Gazette under Section 13(2) of Gujarat Town Planning and Urban Development Act, 1976. The State Government initiated various proceedings, Page 6 of 113 C/SCA/12502/2010 JUDGMENT commonly known as R.T.S. proceedings, inter alia against the petitioner with respect to the subject land for alleged breaches of several provisions of the Bombay Land Revenue Code and allied / auxiliary Acts including the Agricultural Lands Ceiling Act. The Collector, Surat, while disposing of Case No. 21 - 594, by judgment and order dated 5th November 1997 held that the petitioner is a non- farmer and has purchased the subject land being Pot Kharaba and uncultivable, for its proposed Township Project and that the provisions of the Agricultural Lands Ceiling Act are not applicable to the subject land. The Collector accordingly ordered to file the notice issued under Rule No. 108 (6) of the Gujarat Land Revenue Rules.
4.7 The Additional Mamlatdar and Krishi Panch (Ceiling) initiated proceeding under the Agricultural Lands Ceiling Act, 1960 and passed order dated 18.09.2000 that the subject land being Pot Kharaba / Khar was not falling within the purview of the Ceiling Act. The Collector, Surat however, took the above order in suo moto revision under Rule 108(6) and instructed to the Deputy Collector, Surat Prant to proceed de novo. The Deputy Collector, by order dated 07.07.2003, held that the subject land being nonexempt under the Ceiling Act, set aside the order of the Additional Mamlatdar and Krishi Panch (Ceiling) and instructed him to proceed further. The petitioner preferred a Revision Application being No. BS/104/03 on 22.08.2003 before the GRT challenging the said order of the Deputy Collector.
4.8 The Principal Secretary, Revenue Department (Appeals), Government of Gujarat, in suo moto powers under Section 211 of Page 7 of 113 C/SCA/12502/2010 JUDGMENT Gujarat Land Revenue Code, opened Case No. 1 of 2002 and by judgment and order dated 13.03.2002 quashed the order of the Collector, Surat dated 05.11.1997 on a sole ground that the petitioner's predecessors-in-title had evaded payment of stamp duty on the document of the said Family Arrangement. By the said order, the Principal Secretary, Revenue Department (Appeals) directed the petitioner to regularize payment of stamp duty leviable on the said unregistered Memorandum of Family Arrangement dated 18.08.1969. The petitioner complied with such direction. It is the case of the petitioner that the said order otherwise did not find any merits in the allegation against the petitioner for purported breaches of Gujarat Land Revenue Code and/or its allied / auxiliary Acts.
4.9 Since the said order variously affected the rights of the petitioner and the government and also of other holders of the remainder of the lands comprised in revenue survey No. 506 of Village: Abhava, a batch of Special Civil Applications came to be filed before this Court challenging the said order of Principal Secretary. While disposing of the batch of petitions, this Court, by common order dated 08.08.2007, allowed the petition filed by the petitioner being Special Civil Application No. 8848 of 2002 and quashed and set aside the order of the Special Secretary (Appeals) and thereby, restored the earlier order of the Collector dated 05.11.1997 and directed to mutate / reinstate the relevant entry pertaining to the subject land of the petitioner.
4.10 Under instructions from the then Collector, Surat, in exercise of his powers under Rule 108(6) of the Gujarat Land Revenue Rules, directing the Additional Mamlatdar and Krishi Panch (Ceiling), Page 8 of 113 C/SCA/12502/2010 JUDGMENT Taluka: Choryasi, Surat to take into revision the petitioner's holding of the subject land being in violation of the Agricultural Lands Ceiling Act, the Additional Mamlatdar and Krishi Panch (Ceiling), by Notice dated 19.01.2000 in Case No. 1/2000, called upon the petitioner to produce the Exemption Certificate, if any, obtained under the Agricultural Lands Ceiling Act. The petitioner submitted all the documentary evidence relevant for the proceedings. The Additional Mamlatdar and Krishi Panch (Ceiling), after careful appreciation and consideration of the documents produced by the petitioner, subject land having been classified consistently as Pot Kharaba and Tidal Land and uncultivable in the revenue records, clarificatory letter dated 03.06.1985 of the Assistant Collector, Surat Prant, order dated 05.11.1997 of the Collector, Surat, which could not be called in question by the successor Collector, principle of estoppel, purchaser being non-farmer and having purchased the subject land for proposed township, passed order dated 18.09.2000 and recorded and held that the Agricultural Lands Ceiling Act was not applicable to the subject land and therefore, the Notice issued to the petitioner required to be filed. With the order dated 18.09.2000 of the Additional Mamlatdar and Krishi Panch (Ceiling), the Collector, Surat, in exercise of his powers under Rule 108(6) of the Gujarat Land Revenue Rules, directed the Deputy Collector, Choryasi Prant, Surat, to take the said order of Additional Mamlatdar and Krishi Panch (Ceiling) in revision. The Deputy Collector, by Notice dated 06.02.2001 called upon the petitioner to produce all documentary evidence on 27.02.2001 on first hearing. The petitioner accordingly made oral and also written submissions on 08.03.2001. The Deputy Collector also invited certain documentary evidence from the Joint Page 9 of 113 C/SCA/12502/2010 JUDGMENT Director Agriculture, Surat, who by letter dated 14.02.2002 produced a list, wherefrom, it transpired that no survey number of Village:
Abhava was notified as Khar Land. The Deputy Collector, therefore, inferred that the subject land not having been notified under Khar Lands Act, 1948, no exemption under Section 3(1)(aa) of the Ceiling Act could be granted and that it has to be considered the subject land as an agricultural land falling within the purview of the Ceiling Act. The Deputy Collector proceeded to pass order dated 07.07.2003, thereby, cancelling the order dated 18.09.2000 passed by the Additional Mamlatdar and Krishi Panch (Ceiling) and directing him to initiate fresh proceedings under the Ceiling Act.
4.11 Being aggrieved by the aforesaid order of the Deputy Collector, Choryasi Prant, Surat, the petitioner preferred Revision Application before the GRT under Section 76 of the Bombay Tenancy and Agricultural Lands Act, and under Section 38 of the Gujarat Agricultural Lands Ceiling Act, registered under No. TEN BS 104/2003. The petitioner prayed for setting aside the order of the Deputy Collector and to confirm the legal position that the petitioner did not hold excess land under the provisions of the Ceiling Act it being the Khar Land. During the course of hearings, the petitioner again submitted documentary evidence along with detailed written arguments and submissions and cited supporting authorities. The GRT disposed of the the Revision Application vide order dated 11.05.2010 quashing and setting aside not only the impugned order of the Deputy Collector dated 07.07.2003 but also the earlier order dated 18.09.2000 of the Additional Mamlatdar and Krishi Panch (Ceiling) and thereby, remanded the matter to consider all the arguments which Page 10 of 113 C/SCA/12502/2010 JUDGMENT were laid by the petitioner before the Tribunal, being aggrieved and dissatisfied with which, the present petition is filed by the petitioner.
5. Heard, Mr. N. D. Nanavati, the learned senior advocate for M/s.
Wadia Ghandy and Company for the petitioner, Mr. Prakash Jani, the learned Additional Advocate General for the respondent Nos. 2 to 5, Mr. Dilip Kanojiya, the learned advocate for the respondent Nos. 7 and 8, Mr. MTM Hakim, the learned advocate for the respondent No. 9, Ms. Kruti M. Shah, the learned advocate for the respondent Nos. 10 to 20 and Mr. Mihir H. Pathak, the learned advocate for the respondent No. 21, at length.
6. The learned senior advocate for the petitioner has based his arguments mainly on two aspects viz. i) provisions of Ceiling Act are not applicable on the subject land; ii) without prejudice to the rights and contentions of the petitioner, if the Court comes to the conclusion that the Ceiling Act would apply to the proceedings initiated are completely vitiated by the doctrine of dictate and it ultimately amounts to colourable and targeted exercise of powers conferred upon an authority.
6.1 Submissions on the point that provisions of Ceiling Act are not applicable on the subject land:
6.1.1 The learned senior advocate for the petitioner submitted that the land is not cultivable and that is why, the land was considered as 'Khar Kharaba' land and hence, it is outside the scope of Agriculture Lands Ceiling Act. He then referred the operative portion of the impugned Page 11 of 113 C/SCA/12502/2010 JUDGMENT order of GRT dated 11.05.2010. He submitted that the proceedings were initiated pursuant to unauthorised and illegal directions issued by the Collector which find favour in certain manner but the directions to the particular authority to decide as to whether the land in question is amenable to the Ceiling Act and while doing so, to decide as to whether the Collector has powers to give such instructions; whether the question of delay arises or not; whether the land is 'Khar Land' or 'Agricultural Land'; in case the Ceiling Act is applicable to the land in question, whether exemption can be granted or not; etc., and accordingly, it is not an usual order of remand when the company has purchased the land in the year 1985 from the Government. The Collector says that it cannot be granted and initiated proceedings, which cannot be done. In that context he contended that the land in question cannot be subjected to Agriculture Land Ceiling Act as it is classified as 'Khar Kharaba' land and is not cultivable and falls under 'B-I' category of land as per the revenue record. To substantiated this fact, he referred document at Annexure 'V' at pg. 242 to the petition, which is 'Kami Jasti Patrak/Durasti Patrak', more particularly, column No. 4 of the same, which describes the land as 'Khar Kharaba' land and falls under B-I category of land.
6.1.2 He, accordingly, referred Sections 2(1) and 2(6) of the Ceiling Act, the meaning of agriculture and the definition of 'dry crop land', which are extracted hereunder:
"2. In this Act, unless the context requires otherwise- (1) "agriculture" includes-
(a) horticulture,
(b) the raising of crops, grass or garden produce.Page 12 of 113
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(c) the use by an agriculturist of the land held by him or part thereof for grazing.
(d) the use of any land, whether or not an appanage to rice or paddy land, for the purpose of rabmanure,
(e) dairy farming, (f) poultry farming.
(g) breeding of live-stock, and (h) the cutting of wood :
Provided that in relation to any period prior to the specified date, "agriculture" shall not include any of the pursuits specified in sub- clauses (d), (e), (f), (g) and (h) and also such other pursuits as may have been prescribed prior to the specified date as pursuits not included in that word;] (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 1.--For the purpose of this Act-
(a) "perennially irrigated land" means land 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 Feb- ruary in a year from any source of irrigation, and is consequently capable of growing at least one crop in a year;
(c) "Superior dry crop land" means rice land and orchard;Page 13 of 113
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(d) "rice land" means land which is situtated in a local area where the average rainfall is not less than 89 centimetres a year, such average being cal- culated on the basis of rain-fall in that area during the five years immediately preceeding 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 (c) 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 (e) shall, notwith- standing 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 irri- gation 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 II.-For the propose of paragraphs (a) and (b) of Explanation I, a certificate granted by 6[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 III.-For the purposes of Expiation-II, "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 Bom- bay Irrigation Act, 1879 such canal officer ;
and,
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(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"] [(6A) "Code" means the Bombay Land Revenue Code, 1879;]."
6.1.3 Referring the above sections, he submitted that 'dry crop land' is also covered, whereas, 'Khar Kharaba' land' is not covered under the Ceiling Act and since 1960 onwards there is no change in classification of land and assessment of land revenue. He submitted that classification of land is done by the authority which is final as is done in the case on hand vide document at Annexure 'V', as aforesaid. The learned senior advocate for the petitioner then referred Sections 18 and 112 of the Gujarat Land Revenue Code (for brevity, 'Code'), which read as under:
"18. Survey Officers. - For the purposes of Chapters VIII, [VIII-A], IX and X [***] the [State] Government] may appoint such officers as may from time to time appear necessary. Such officers shall be designated ["Settlement Commissioners"], "Commissioner of Survey", "Superintendent of Survey", "Survey Settlement Officers", ["Settlement Officers"] and "Assistant", or otherwise as may seem requisite, and shall be subordinated the one to the other in such order as the [State] Government] may direct. their duties and powers. - Subject to the orders of the [State] Government] the officers so appointed are vested with the cognisance of all matters connected with survey and settlement, and shall exercise all such powers and perform all such duties as may be prescribed by this or any other law for the time being in force.
112. Maintenance of existing settlements of land revenue. - Existing survey settlements of land revenue made, approved and confirmed under the authority of the [State] Government] shall be, and are hereby declared to be, in force subject to the provisions of this Act."
6.1.4 Referring above provisions, he submitted that accordingly, Page 15 of 113 C/SCA/12502/2010 JUDGMENT classification of land is done and procedures are adopted for the same. The land in question is the 'Khar Kharaba' land and is not covered under the Act. Referring 'Durasti Patrak' (Annexure 'V', page
242) again, he submitted that land in question is 'Khar Kharaba' Land. He also referred Section 2(17) i.e. definition of 'land' under 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 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-
(a) the sites of farm buildings appurtenant to such land;
(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, the Saurashtra Barkhali Abol-
ition Act, 1951 or the Saurashtra Estates Acquisition Act, 1952, as the case may be;
(d) such bid lands as are held by a person who, before the commencement of the Constitution (Twenty-Sixth Amendment) Act, 1971 was a Ruler of an Indian State comprised in the Saurashtra area of the State of Gujarat, as his private property in pursuance of the covenant entered into by the Ruler of such State ;
(e) trees and standing crops on such land;
(f) canals, channels, wells, pipes or reservoirs and other works constructed or maintained on such land for the supply or storage of water for the purpose of agriculture ;
(g) drainage works, embankments, bandharas or any other works appurtenant to such land, or constructed or maintained thereon for the Page 16 of 113 C/SCA/12502/2010 JUDGMENT purpose of agriculture, and all structures and permanent fixtures on such land;
Explanation.-In clause (d), the expressions "Ruler" and "Indian State"
shall have the same meanings as are assigned to them in clauses (22) and (15) respectively of article 366 of the Constitution and the expression "covenant" shall have reference to the covenant which was referred to in article 291 of the Constitution before the repeal of that article by the Constitution (Twenty-Sixth Amendment) Act, 1971;]"
6.1.5 Referring above section, he submitted that it also does not cover the 'Khar Kharaba' Land. He emphasized the words 'Cultivated' or 'Cultivable' and submitted that the land in question is 'Khar Kharaba' Land and hence, it is not 'Cultivable' as is substantiated by aforesaid document at Annexure 'V', page 242 as it falls under 'B-I' category of land and hence, it is not covered under the Ceiling Act also and therefore, the provisions of the Ceiling Act are not amenable to the land in question. He submitted that the subject land is neither in use for agriculture purpose nor is capable of agriculture work and hence it does not fall under the purview of the Ceiling Act. He further submitted that there is material to suggest and substantiate the above fact. He submitted that earlier proceedings were initiated under Rule 108(6) of the Rules and vide order dated 05.11.1997, passed by the Collector, Surat (page 67 to 81 typed copy - original copy at page 81/A onwards), it is observed that the petitioner has acquired the land for township and not for agriculture activity. It is specifically observed in the same that the land is the 'Khar Kharaba' land, which is before the inquiry initiated against the petitioner for the purpose of Ceiling Act. Even, respondent No. 1 - GRT also vide its order dated 08.04.1976, page 32 Annexure 'A' to the petition, relevant is at page 59, part of para 11, in which, it is observed that the land is 'Khar Page 17 of 113 C/SCA/12502/2010 JUDGMENT Kharaba' land. It narrates that land is 'Khar' land i.e. 'Saltish' land and it is not cultivable. Thus, several authorities have certified the land in question as 'Khar Kharaba' land. He submitted that the concept of term 'agriculture', 'agriculture land' and 'agriculture purpose', have acquired judicial meaning and they are specific.
6.1.6 The learned senior advocate for the petition submitted that conjoined reading of all these definitions of land, agriculture, class of lands etc. are individually defined and reading them together makes it is clear that any other portion of the land on the earth may be land but not for the purpose of Ceiling Act and cannot be subjected to the provisions of the Ceiling Act only because it is a land. If the land is 'uncultivable' then it is not covered under the Act. It is submitted nowhere in the past also, the land in question was cultivated and has never been assessed for land revenue. Even the authorities have come to conclusion that the land in question is not 'cultivable'. In this regard, he again referred the order dated 05.11.1997 passed by the Collector and submitted that this order dated 05.11.1997, which is passed by the Collector in RTS revision, is confirmed up to the Hon'ble Apex Court. He then referred the order dated 13.03.2002, passed by the Principal Secretary, Revenue Department (Appeals), in suo motu Revision Case No. 1/2002 by which, order dated 05.11.1997 came to be dismissed, however, vide judgment and order dated 08.08.2007 passed by this Court in Special Civil Application No. 8848 of 2002 and other allied matters, the aforesaid order dated 13.03.2002 came to be quashed and set aside and the order dated 05.11.1997 passed by the Collector, came to be revived. In reply to the query raised by the Court as to whether the State had challenged Page 18 of 113 C/SCA/12502/2010 JUDGMENT the above order before the High Court, the learned senior advocate for the petitioner submitted that Special Civil Application No. 598 of 2003 was preferred by the State Government, which was dismissed by this very order (dated 08.08.2007). He submitted that thus, by aforesaid judgment and order passed by this Court, the order dated 05.11.1997 came to be upheld and order dated 13.03.2002 came to be set aside. This order was also carried before Hon'ble Apex Court by preferring Special Leave Petition, which came to be dismissed on 26.08.2013 only on the ground of delay. Against the said dismissal, Review petitions also came to be filed, which were also dismissed, thus, eventually, the order dated 05.11.1997 passed by the Collector has attained finality. The Collector has clearly observed that this land has been purchased for constructing the township purpose.
6.1.7 The affidavit is filed by the Mamlatdar & ALT, who is the quasi judicial authority; it is sworn on 11.03.2018 i.e. Sunday, before the Notary, situated at Valsad, served upon the petitioner on 12.03.2018 only by which, certain documents have been produced by the respondent - State. He submitted that in the entire affidavit, the relevance of the document submitted is not pleaded. He submitted that in a writ of certiorari, the material which is not on record, cannot be submitted in the manner as it is placed on record by this affidavit.
6.1.8 The learned senior advocate for the petitioner then referred the letter dated 24.08.1999 at page 202-D to the petition and submitted that pursuant to the said letter issued by the Mamlatdar & ALT, show- cause notice was issued. He submitted that the Collector rejected the application for grant of further 600 acres of land besides 1600 acres Page 19 of 113 C/SCA/12502/2010 JUDGMENT of land. He referred the said letter and submitted that copy of letter rejecting the aforesaid application of the petitioner is forwarded to the Mamlatdar & ALT, Choryasi, which the Collector could not have done as the Mamlatdar & ALT is not at all the subordinate authority to the Collector under the Ceiling Act as like in revenue proceedings and is a quasi judicial authority.
6.1.9 The learned senior advocate for the petitioner further submitted that without prejudice to his contention that Ceiling Act does not apply to the land in question, if for the sake of argument it is presumed that the Ceiling Act is applied to the land in question, then also, under the Ceiling Act, the Mamlatdar is the quasi judicial authority. He referred Sub-section 30 of Section 2 of the Ceiling Act, which defines 'Tribunal'. He, then referred Sections 10, 12 and 13 of the Ceiling Act and submitted that this is how a tribunal supposed to function. He, then, referred Sections 21 and 22 of the Ceiling Act and submitted that if on the appointed day one holds the excess land, then, he has to furnish the details and if not furnished, the tribunal is empowered to initiate actions and in such a scheme, if on the application of the petitioner for additional 600 acres of land, the Collector directs the Mamlatdar & ALT to take necessary steps in accordance with law, in the submission of the learned senior advocate, the Mamlatdar & ALT is not the subordinate authority to Collector under the Act in question. For ready perusal, aforesaid sections are produced herein below:
"2(30)."Tribunal" means the Agricultural Lands Tribunal constituted for any area under the relevant tenancy law and where in any part of the State of Gujarat the relevant tenancy law does not provide for the Page 20 of 113 C/SCA/12502/2010 JUDGMENT constitution of the Tribunal, such officer not below the rank of a Mamlatdar as the State Government may appoint to be the Tribunal for any area in that part of the State of Gujarat.
10.(1) [Every person-
(a) holding land (including exempted land, if any) in excess of the ceiling area whether as owner or tenant or partly as owner and partly as tenant on the appointed day,
(b) who, on or after the appointed day, comes into possession of, or holds, any land (including exempted land, if any and land, if any, held in any other part of India outside this State) in excess of the ceiling area, whether as owner or tenant or partly as owner and partly as tenant, in the circumstances described in section 9,
(c) whose land is converted into another class of land, thereby causing his holding to exceed the ceiling area, in the circumstances described in clause (i) of section 9A,
(d) whose land becomes, surplus under the circumstances described in clause (ii) of section 9A,-
shall-
(i) in the case under clause (a), within a period of ninety days from the appointed day,
(ii) in the case under clause (b), within a period of ninety days from the date of his coming into possession of the land in excess of the ceiling area,
(iii) in the case under clause (c), within a period of ninety days from the date of such conversion (such date being a date notified, in the Official Gazette by the State Government in respect of any area),
(iv) in the case under clause (d), within a period of ninety days from the specified date, furnish to each of the Mamlatdars in whose jurisdiction any piece of such land is situate, a true statement specifying]- (1) particulars of all lands .including their survey numbers and areas ; (2) particulars of all exempted lands, if any, including their survey numbers and areas;
Page 21 of 113C/SCA/12502/2010 JUDGMENT (3) particulars of all lands held as owner ;
(4) particulars of all lands held as tenant ;
(5) particulars of all the encumbrances, if any, over the lands together with the names and addresses of the creditors ;
(6) particulars of lands held as a member of a joint family along with their survey numbers and area; and (7) such other particulars, if any, as may be prescribed.
[(1A) Every such person who does not hold any land in any part of India outside this State shall also furnish, with such statement, an affidavit that he does not hold any land in any such part.] (2) The Mamlatdar shall forward to the Tribunal the statements received by him under sub-section (1).
11. xxx
12. All surplus lands shall be deemed to be needed for a public purpose and may be acquired by the State Government in accordance with the provisions of this Act.
13. (1) As soon as may be after the expiry of the period specified in section 10, or the further period referred to in sub-section (2) of section 16, the Tribunal shall, on the basis of the statements received under either of those sections and such other records as may be prescribed proceed to prepare a list of persons holding surplus land.
(2) The Tribunal shall specify in such list--
(a) the total land held by each person,
(b) the maximum area of land which such person is entitled to hold,
(c) the extent of land to be deemed to be surplus land held by such per- son, and
(d) such other particulars as may be prescribed.
21.(1) After taking into consideration the objections and suggestions, if any, received and the particulars if any, furnished under section 20, and making such further inquiry, if any, (including giving the holder of surplus lands an opportunity of being heard) as it thinks fit. the Tribunal shall make in respect of such holder of surplus land an order declaring in particular--
(i) the total land held by him,
Page 22 of 113
C/SCA/12502/2010 JUDGMENT
(ii) which land out of the total land is surplus land, and
(iii) which land out of the total land he is entitled to hold, and shall communicate the order so made to such holder.
(2) an order made under sub-section (1) shall be conclusive evidence that the surplus land specified therein is needed for a public purpose and such surplus land shall, subject to the provisions of section 19 and of Chapter VI, vest in the State Government free from all encumbrances with effect from the date of the order.
22.(1) As soon as may be after an order is made under section 21, the Tribunal shall cause public notice to be given at the village where the surplus land specified in the order is situate, stating that--
(a) claims for possession of such surplus land or any part thereof under section 19, and
(b) claims to compensation for all interests in such land, may be made to it, (2) Such notice shall require the landlord claiming possession under section 19 and in any other case, the owner, tenant, landlord and other persons interested in the land including the holders of encumbrances lawfully subsisting on the land to appear personally or by agent before the tribunal at a time and place therein mentioned (such time not being earlier than fifteen days after the said date) and to state the nature of their respective interests in the land [The depreciated value of permanent structures and wells, if any, under clause (c) of sub-section (1) of section 23] and particulars of their claims to possession of land or, as the case may be, to compensation for such interest. Every such statement shall be made in writing and signed by the person interested or his agent.
(3) The Tribunal may also by a notice require the person holding the surplus land to make and deliver to it at a time and place mentioned in the notice a statement containing as far as practicable the name of the landlord entitled to possession of the land under section 19 and of every other person possessing any interest in the land or any part thereof as co-sharer, mortgagee, landlord or otherwise and of the nature of such interest.
(4) Every person required to make or deliver a statement under sub- section (3) shall be deemed to be legally bound to do so within the Page 23 of 113 C/SCA/12502/2010 JUDGMENT meaning of sections 175 and 176 of the Indian Penal Code."
6.1.10 Moreover, the learned senior advocate for the petitioner, by referring letter dated 15.12.2010 written by Collector, Surat to the Vice Chancellor, Agricultural University, Navsari (Annexure 'Q' at page 202/L to the petition) submitted that opinion was also sought from the Agricultural University, Navsari as to whether the land is cultivable or not. He submitted that the impugned order passed by the GRT is dated 11.05.2010 and the petition is also filed in the year 2010. Taking the Court to the Analysis report (opinion) with respect to the land in question, forwarded by the Professor and Head, Department of Soil Science and Agricultural Chemistry, N. M. College of Agriculture, Navsari Agricultural University, Navsari at Annexure 'IV' (forwarding letter at page 228 and report starts from page 229, relevant is at page 241), which the petitioner has got under the provisions of the RTI Act, he submitted that it is clear from the said analysis report that the land in question is not cultivable. Thus, he submitted that when the land itself is not cultivable, how can it be the subject matter under Ceiling Act. In the revenue record it is referred to as 'uncultivable'; the land is never and ever cultivated; Agricultural University opines the land to be 'uncultivable'; Collector has also observed that the land is not for cultivation and the order of Collector has attained finality and that GRT in 1976 (08.04.1976, Annexure 'A', page 32, relevant at page 59) has given a decision in an appeal under the Bombay Land Revenue Code, which substantiates that land is not cultivable and it cannot be vested in the government. The GRT has recorded as back as in 1976 such fact, which is the final fact finding authority. This order was carried upto the Hon'ble Apex Court and has eventually attained finality by order dated 02.01.2013 passed by Page 24 of 113 C/SCA/12502/2010 JUDGMENT the Hon'ble Apex Court in the SLP filed by the government, which was dismissed on the ground of delay and also on merits, against which, review petition was filed, which was also dismissed. Besides, the State Government had also decided to accept the judgment and order of the High Court much prior to moving the Hon'ble Apex Court into appeal, which can be substantiated from the letter dated 08.07.1993 at Annexure 'I', page 218, written by the Secretary, Legal Department to the Office of the Government Pleaders, Gujarat High Court. He submitted that after all this, only because this petition was pending, in 2013, they challenged the order by filing the petition, which went up to Supreme Court. He then, by supplying the copy, referred the grounds of SLP (at pg. 22 of the same onwards, grounds 'D', 'E', 'H' i.e. taking all the available contentions) and submitted that when the findings are confirmed up to the Hon'ble Apex Court, matter rests there. He submitted that in all those proceedings, the government has failed. The learned senior advocate submitted that thus, two sets of orders, first against the order of Collector of 1997 (05.11.1997) and second against order of GRT dated 08.04.1976 and in both the proceedings, the government has failed. Thus, the substance of the argument of the learned senior advocate for the petitioner is that the Ceiling Act is not applicable to the land in question. He then referred the letter dated 15.09.2014, written by the Deputy Secretary, Revenue Department to the Collector, Surat, a copy of which is produced at page 202/C and submitted that by the said letter it was informed that the government has decided to accept the orders of the Hon'ble Apex Court. He emphasized last lines of the said letter dated 15.09.2014 and submitted that what the Collector has done after this letter, the government has not and never clarified in Page 25 of 113 C/SCA/12502/2010 JUDGMENT their replies.
6.1.11 The learned senior advocate further submitted that on one hand the government loses every day before High Court as well as before the Hon'ble Apex Court and on the other hand, initiates proceedings again and asks the petitioner to submit the exemption certificate, if any, the petitioner has got, otherwise they will proceed accordingly. He then by again referring the order dated 18.09.2000 passed by the Additional Mamlatdar & ALT and submitted that this order clearly suggests that provisions of the Ceiling Act are not amenable to the land in question. The learned senior advocate for the petitioner then referred letter dated 22.01.2001 written by the Collector, Surat to the Deputy Collector, Choryasi Prant, Surat by which, he has directed to take the aforesaid order dated 18.09.2000 in revision under Section 3 of the Ceiling Act on the grounds mentioned therein and submitted that the appellate powers of Collector can be delegated to the Deputy Collector. He referred Section 35 of the Ceiling Act, which provides for appeal against the order of the Mamlatdar. He then referred referred Section 37 of the Ceiling Act. He then referred Sub-section 7 of Section 2, which defines 'Collector' and submitted that Collector includes Additional Collector and Assistant Collector. Referring above provisions, he submitted that in the case on hand, Collector directs his parallel authority to act accordingly, which is against the tenor of the Ceiling Act.
6.1.12 He then submitted that 1600 acres of land has remained idle under the pretext of different litigations, in all of which, the petitioner has succeeded.
Page 26 of 113C/SCA/12502/2010 JUDGMENT 6.2 Submissions on the point of colourable exercise of powers:
6.2.1 The learned senior advocate for the petitioner submitted that by way of impugned order, the GRT has remanded the matter to the Mamlatdar & ALT directing him to decide as to whether the Collector could have directed to initiate the proceedings? In this regard, he firstly submitted that the GRT itself could have decided this issue without remanding the matter and secondly he submitted that, can a statutory authority be directed, even by its superior authority to act or not to act in a particular manner. He submitted that if the Mamlatdar is conferred with the powers then the authority in appeal or revision, the same shall be utilised qua appeal or revision only and not otherwise.
6.2.2 The learned senior advocate then referred Notice dated 06.02.2001 issued by the Deputy Collector, Choryasi Prant, Surat in the revision proceedings, which is, in terms of communication received by him from the Collector and submitted that such dictates are not permissible under the law. On the point, he referred and relied several decisions (spiral book supplied) as under:
i) Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16, more particularly, para 25 to 29;
ii) Anirudhsinhji Karansinhji Jadeja and Another Vs. State of Gujarat, reported in (1995) 5 SCC 302, more particularly, para 11 to 14;
iii) Pancham Chand and Others Vs. State of Himachal Pradesh and Others, reported in (2008) 7 SCC 117, more particularly, para 18 to 20;Page 27 of 113
C/SCA/12502/2010 JUDGMENT 6.2.3 Referring the above decisions he submitted that the powers vested in one authority, sought to be exercised by the other authority, is not permissible under the law. The Mamlatdar & ALT being quasi judicial independent authority, Collector could not have issued such an order. It is arbitrary, discriminatory and suffers from vice of the Act and it can be termed as colourable exercise of powers.
6.2.4 The learned senior advocate for the petitioner further submitted that it is well settled that if the power is conferred upon an authority, the said authority supposed to discharge his duty as per the powers he availed. Here, in the case on hand, assuming for the sake of arguments that the powers are there under Ceiling Act, even then, the action of the concerned authority is colourable exercise of power and hence, the impugned action requires to be quashed. An individual may not have grudge against the petitioner but if authority going on passing certain orders against the petitioner then it is latent in malice rather than latent fact.
6.2.5 In this regard, he again drew attention of the Court to the order passed by the Collector, Surat dated 05.11.1997 (relevant at page 79, 80), which refers the land is 'Khar Kharaba' Land and hence, in the submission of the learned senior advocate Mr. Nanavati, the Ceiling Act would not be applicable. He submitted that this order of the Collector (dated 05.11.1997) has attained finality up to the Hon'ble Apex Court. He further submitted that an office incumbent may change but it is the seal of the Collector on the order that is important. It is not that administrative decisions cannot be reviewed but it is with certain self-imposed discipline and with all germane reasons. He Page 28 of 113 C/SCA/12502/2010 JUDGMENT further submitted that in the aforesaid fact, it is the mute question of law and the fact that as to what drove the Collector to direct the Mamlatdar & ALT to do the needful under Ceiling Act by forwarding the copy while rejecting the application for grant of additional 600 acres. He submitted that on 13.03.2002, SSRD passes an order setting aside the order of the Collector in suo motu revision in which first show-cause notice was issued on 01.01.2002 and the hearing was fixed on 23.01.2002. So, at least, till 23.01.2002, the order date 05.11.1997 was in operation. He submitted that this Court restores the order of Collector by judgment and order dated 08.08.2007 passed in SCA No. 8848 of 2002 against which, Special Leave Petition and the Review Petition have also been dismissed and hence, it amounts to colourable exercise of powers as though order dated 05.11.1997 of the Collector has attained finality, again proceedings are started suo motu.
6.2.6 The learned senior advocate further submitted that, in the year 2000, for the first time show-cause notice was issued under the Ceiling Act. The petitioner has purchased the land in between 1985 and 1995 and hence, such gross delay in initiating the proceedings, is nothing but to deprive the petitioner from its immovable property i.e. the land in question and it appears to be for some extraneous reasons rather than germane. The petitioner is a company dealing in construction and development and before purchasing the land in question, the petitioner had made certain inquiries and found certain document and all the relevant aspects were taken care of and then, after almost 15 years, such proceedings have cropped up, which is unjustifiable. When, the petitioner purchased the land, the judgment of GRT of Page 29 of 113 C/SCA/12502/2010 JUDGMENT 1976 (in the matter of predecessor-in-title) was very much there, which has also attained finality. Here, there is inherent lack of powers and as the land is not cultivable, the powers are exercised arbitrarily and at the belated stage.
6.2.7 The learned senior advocate for the petitioner then referred the letter dated 15.12.2010 (at page 202-M of the petition), written by the by Collector, Surat to the Vice Chancellor of the University. He submitted that the said letter is written after this Court entertained the petition. He also referred the Analysis Report (at page 229) and submitted that there should be all fairness in the attitude of the State authorities in dealing with any matter. There is no mention about this report any where in the replies filed by the State. He submitted that it may be due to the said Analysis Report of the university is against the State. But, in any case, this action of the State amounts to suppression of material fact, which is equally serious. He submitted that even for getting the copy of report, the requisite fees is also not paid, which is reflected from the forwarding letter of the university dated 03.03.2011 (at page 228).
6.2.8 The learned senior advocate then submitted that Rule was issued in the petition on 24.09.2010, which appears to have been by parte. He submitted that the approach of the State should not be adversarial. The State should be fair enough at least with the Court of law. He then drew attention of the Court to the letter dated 28.04.2003 written by the Resident Deputy Collector, Surat to the Deputy Collector, Choryasi Prant, Surat (at page 202-I Annexure 'P') on the aspect of dictate and colourable exercise of powers. He submitted that this Page 30 of 113 C/SCA/12502/2010 JUDGMENT letter speaks a volume about the dictate as the Collector is enquiring of the actions taken, which is really pitiable. The order which is mentioned in that letter is of 07.07.2003. Referring the same, he submitted that this is not the way in which the powers conferred are to be exercised as it is against the citizens' right to hold the property. The learned senior advocate referred the impugned order passed by the GRT (at page 196). He then referred the notice dated 06.02.2001 (at page 162), issued by the Deputy Collector, Choryasi Prant, Surat calling upon the petitioner to answer the issue raised therein, to which, Deputy Collector, Choryasi Prant, Surat proceeds to consider, the relevant observations are at page 177. He submitted that Mamlatdar & ALT has only said that the Ceiling Act is not applicable to the land in question and not that the land is exempted. He further submitted that it is nobody's case that the land falls under the Khar Lands Act, however, it is so observed in the observations made in the aforesaid order. He submitted that the Khar Lands Act is repealed in 2000, but the definition of 'Khar Land' is important and accordingly, if a land is made cultivable by putting efforts in that case, the said land would be exempted from the provisions of the Ceiling Act. In this regard, he again took this Court to Section 3 of the Ceiling Act, which provides for 'Exempted Lands', more particularly, S. 3(1)(aa) and submitted that the petitioner has purchased the land for development of township and not for agricultural purpose. Besides, the land is uncultivable and it is never tried to make it cultivable. Accordingly, there is no question for the petitioner to apply for Exemption Certificate as the land in question was already as such and hence, there is no applicability of the Khar Lands Act and such exercise by the Mamlatdar is uncalled for. He then drew attention to Page 31 of 113 C/SCA/12502/2010 JUDGMENT the observations made by the additional Mamlatdar & ALT (Ceiling), Choryasi, Dist.: Surat in his order dated 18.09.2000 (relevant at page
159) and submitted that the said order is tangent.
6.2.9 The learned senior advocate for the petitioner by again drawing attention of the Court to the impugned order of the GRT (at page 196, relevant at pg. 200 onwards) and firstly submitted that the GRT has failed to exercise the jurisdiction vested in it under the law. He submitted that the question raised in the said order, ought to have been addressed by the GRT itself. He submitted that while passing such order, all the earlier orders were very much in know and available with the GRT and hence, the impugned order of remand is for the sake of remand only. It is not that there is violation of law or procedure or without hearing the either party to the proceedings. Hence, if such orders are passed, it would disserve the interest of justice as it may take one or two more decades in deciding such a case. Instead, the GRT ought to have decided such questions itself.
6.2.10 The learned senior advocate for the petitioner then referred following decisions
i) Devendra Chandulal Shah & Others Vs. Shambhu Ruda Ayar & Others, passed in Special Civil Application No. 3482 of 2008 dated 08.05.2008, more particularly, para 14, 18;
ii) Darabsha Sorabji Vs. State of Gujarat, reported in 2005 (2) GLR 1409, more particularly, para 5, 6.
6.2.11 He then referred decision rendered by the Hon'ble Apex Court in the case of Commissioner of Income Tax, West Bengal, Culcutta Vs. Page 32 of 113 C/SCA/12502/2010 JUDGMENT Raja Benoy Kumar Sahas Roy, reported in AIR 1957 SC 768, more particularly, para 89, 91, 95. The learned senior advocate for the petitioner then referring the definition of 'Agriculture' (Sub-section 1 of S. 2 of the Ceiling Act) submitted that this is an artificial definition given by the legislatures and when artificial meaning is given by law, it will have to be interpreted strictly. Once this is the definition, if some activity is done on the land, it must fall within the activities mentioned in the definition. Thus, on one hand, the meaning of agricultural is expanded and on the other hand the State have circumscribed the enumerated activities. Even, no agricultural activity, as embodied in the Ceiling Act also, is being carried out on the land in question.
6.3 On the aspect of affidavits-in-reply filed by the respondent - State, the learned senior advocate for the petitioner drew attention of the Court to the first affidavit filed by the State (at page 284 affirmed by the Deputy Collector, Land Reforms, Surat on 29.09.2014). He referred para 6 onwards of the same. He then referred second affidavit filed by the State, which is affirmed on 11.04.2016 i.e. almost two years after the first affidavit, by Deputy Collector, in which there is repetition of almost contents of the earlier affidavit. He then referred the third affidavit filed by the State, affirmed by the Deputy Collector on 04.12.2017 at Surat, more particularly, para 4 of the same and submitted that for the first time, the State came with the issue of maintainability of the petition after all these years. He then referred the fourth affidavit filed by the State, which is sworn on 11.03.2018 at Valsad by the Mamlatdar & ALT, more particularly, para 3 and 4 of the same.
Page 33 of 113C/SCA/12502/2010 JUDGMENT 6.4 On the aspect of impleadment of certain private respondents more particularly, the respondent Nos. 6, 7 and 8, the learned senior advocate for the petitioner submissions that their claim on the land in question, their suit, First Appeal, right up to the Hon'ble Apex Court in SLP are dismissed.
6.5 Making above submissions, it is urged that order passed by the Mamlatdar & ALT of 2000 be restored.
7. Per contra, Mr. PK Jani, the learned Additional Advocate General for the respondent - State at the outset, read the prayers of the petition and submitted that the only prayers made in the petition is: firstly to declare that provisions of Ceiling Act are not amenable to the land in question and secondly, to quash the order of the GRT dated 11.05.2010 (Pg. 196 to 202). He submitted that it is after a period of four years of filing of this petition, by way of amendment, the prayer was modified, by which, declaration was sought as to provisions of Ceiling Act are not amenable to the land in question.
7.1 The learned Additional Advocate General then referred the order of GRT dated 11.05.2010 in the revision application filed by the present petitioner, which was allowed in part and the matter was remanded to the Agricultural Land Tribunal, Choryasi with certain directions and submitted that this revision application was filed by the petitioner company challenging order of the Deputy Collector, Choryasi Prant, Surat dated 07.07.2003 by which order dated 18.09.2000, passed by the Additional Mamlatdar & ALT came to be set aside and the matter was remanded to the Mamlatdar & ALT. He submitted that this order Page 34 of 113 C/SCA/12502/2010 JUDGMENT is not the subject matter of this petition as in the prayer clause it is not prayed to be quashed and set aside.
7.2 The learned Additional Advocate General then referred the order dated 18.09.2000 (at page 149, operative part at page 161) i.e. the original order of Mamlatdar an ALT by which, he had quashed the notice under the Ceiling Act as he opined that the provisions of Ceiling Act are not attracted to the land in question. However, he by drawing attention of the Court to the relevant admission on the part of the petitioner narrated in this very order (on page 157, typed copy) that if efforts are made, the land can be 'cultivable' and submitted that thus, the petitioner itself has admitted that the land can be cultivable by putting efforts.
7.3 In the midst of the above submissions, the learned Additional Advocate General submitted that in any case, for holding more than 39 acres of land, the provisions of the Ceiling Act would apply.
7.4 The learned Additional Advocate General further submitted that five persons became owners of the land in question in 1976; they entered into back dated agreement in 1969 to come out from the provisions of Ceiling Act and declared that the 67 persons, as mentioned therein, are the sharers of the land and thereby, they became owner of the land in piecemeal (short chunk) and thereby, they sought to by-pass the provisions of the Ceiling Act tactfully. The present petitioner purchased the land from these 67 persons on Rs.3 non-judicial stamp papers and thereby, got the entries registered, out of which, first entry registered is No. 591 in 1996. The learned Additional Advocate Page 35 of 113 C/SCA/12502/2010 JUDGMENT General submitted that in any case, the order dated 05.11.1997 passed by the Collector is qua entry No. 594 only and attainment of finality is in relation to the entry in the revenue record only and not qua the point that the provisions of Ceiling Act are not applied. Thus, in the submission of the learned Additional Advocate General, no Court of law has precluded the State to act if provisions of other Acts are applicable.
7.5 The learned Additional Advocate General, in retaliation to the submission of learned senior advocate Mr. ND Nanavati that Collector cannot direct the Mamlatdar, again referred the impugned order of the GRT, more particularly, the observations at page 197 and submitted that in fact, the Collector who is the revisional authority under the Ceiling Act, has informed the Mamlatdar, who functions as ALT (Agriculture Land Tribunal) to act accordingly under the Ceiling Act. He submitted that the powers of revision includes such a power to direct the lower authority. He further submitted that the revisional powers of the Collector are referred in Section 37, whereas, the powers of Tribunal are referred in Section 38, of the Ceiling Act. He, by again reading the impugned order of GRT, more particularly, at page 200 and 201 submitted that GRT has specifically observed that the petitioner has not produced any evidence in support its assertion that the land in question is the 'Khar Land'. The learned Additional Advocate General further submitted that the order of the Mamlatdar & ALT suffers from several illegalities and arbitrariness for the reasons that no prior notice was issued to the government; no evidence was produced by the petitioner; before the documents called for made available, order came to be passed and pronounced.
Page 36 of 113C/SCA/12502/2010 JUDGMENT Besides, the learned Additional Advocate General submitted that, by the impugned order, the matter is remanded to decide afresh keeping open all the contentions available to either of the parties and hence, no prejudice would be caused to any of the parties. Further, the learned Additional Advocate General submitted that even otherwise, there is no challenge at any stage by the petitioner qua such direction issued by the Collector directing the Mamlatdar & ALT to initiate proceedings under the Ceiling Act and there is nothing on record to suggest the substantive challenge to the Collector's action.
7.6 The learned Additional Advocate General then referred the order of the GRT dated 08.04.1976 (at page 32) passed in the revision application filed by one Maganbhai Becharbhai Patel and 04 others i.e. the the predecessors-in-title of the petitioner, more particularly, the operative portion of the same at page 64 and submitted that these revisionists had succeeded and they became the owners of the land in question as per this judgment of GRT. He then referred pg. 1005, which is the affidavit filed by the State dated 11.03.2018 at page 1005 and referred the document annexed with it at Annexure FA1 i.e. the Declaration Deed, starting from page 1013 and submitted that the date mentioned in it is 18.08.1969 (reflected at pg. 1020). This agreement was done on a stamp paper of Rs.3/- in 1969 in favour of in all 63 persons who belonged to different places and castes and of different age. He submitted that it is suggestive of the fact that this is done (ownership of 63 persons) only with a view to avoid the provisions of the Ceiling Act and to avoid the ceiling limit of 39 acres as is fixed in that particular area. The learned Additional Advocate General then again referred the order of GRT dated 08.04.1976, more Page 37 of 113 C/SCA/12502/2010 JUDGMENT particularly, the operative part of the same at page 64 and submitted that ownership was declared of 05 persons in the year 1976. Maganbhai and others succeeded before the GRT in 1976 (08.04.1976). Based on this agreement of 1969 and the order of 1976, entry No. 591 dated 05.10.1976 qua Maganbhai and others and then entry no. 594 dated 09.12.1976 qua 67 persons, were mutated in the relevant revenue records indicating that 1603 acres of land is held by 67 persons in the manner in which their shares are alloted. He then referred the provisions of Code in retaliation to the arguments made on behalf of the petitioner that these entries have attained finality up to the Hon'ble Apex Court. He read the objects and reasons of the Code and submitted that the Code is meant for three main things mentioned in it and beyond that, nothing is to be done. He referred Section 135(A)(B)(C)(D) to (I) of the Code - Exemption from provisions of record of rights and submitted that in Gujarat, after 1997, the land revenue is not being charged but instead the Education Cess is being charged. He then referred Chapter 15(A) of the Gujarat Land Revenue Rules, which prescribes for Appeals. In the said backdrop, he referred the order of the Collector dated 05.11.1997 (more particularly, page 81-A, B) on the aspect of entry Nos. 591 and 594. He submitted that, if an entry is confirmed up to the Hon'ble Apex Court, it cannot debar the land to be dealt with under the provisions of Ceiling Act. Gujarat Khar Lands Act is repealed in 2000 only. For exemption, the Government has to issue the Notification and the contender has to apply for Exemption Certificate with the said Notification. At present, the petitioner has purchased the land in question (from that of 67 persons) and hence, notice has been issued to the petitioner - company only as it being the Page 38 of 113 C/SCA/12502/2010 JUDGMENT sole proprietor and that, since the land is above the prescribed ceiling limit. He also referred the order of this Court passed in Special Civil Application No. 8848 of 2002 and allied matters, more particularly, para 17 of the same at page 142 and submitted that what is final is entry Nos. 591 and 594 and other entries and does that finality take away the statutory liability of any citizen towards any other law, and in his submission, the answer would be 'NO'.
7.7 The learned Additional Advocate General then submitted that in Village: Abhava, the ceiling prescribed is 39 acres, which is the statutorily declared ceiling limit. In that context he referred the last affidavit-in-reply filed by the State, wherein, the holding of all the 67 persons is referred from pg. 1017 onwards and submitted that the holdings of most of the sharers are 20 acres each, whereas, 6-7 persons hold 40 acres of land as reflected at page 1020. All these persons may not be the agriculturists because they stay at different places and as per the prevailing provision of law, there was a prohibition that an agriculturist cannot be an agriculturist beyond a radius of 09 km. from the land in question. However, he admitted that the said provision is now, modified but then it was prevailing. Moreover, he, by drawing attention the names mentioned at serial Nos. 35 to 44 submitted that, these serial numbers belong to Vyas family, resided at Mumbai; similarly, there are other families and hence, in his submission, how come these persons, belonged to the different castes and places, could be bearers of the land in question when there is no connection between them. He, then, by referring the Declaration Agreement at page 1013 onwards submitted that it is dated 18.08.1969, whereas, as per the affidavit filed by the State Page 39 of 113 C/SCA/12502/2010 JUDGMENT dated 11.03.2018 at page 1005 onwards, the date of sale deed is mentioned to be 16.10.1969. So the Sale Deeds are effected between October and December 1969, with in all five persons. Before they become owners by way of above Sale Deeds, these five persons entered into agreement with 67 original persons in August 1969. So, it is ample clear that they (67 persons) shared the land prior to the Sale Deed with above 05 persons, only with a view to escape the provisions of Ceiling Act.
7.8 The learned Additional Advocate General then referred entry No. 591 dated 05.10.1976 and the entry No. 594 dated 09.12.1976 (separate copy supplied). He also referred other entries and submitted that several entries like entry No. 913 etc. had been mutated in favour of the petitioner based on the above Sale Deeds. In reply to the query raised by the Court as to whether the land was purchased as agriculturists, he replied in negative and submitted that it is purchased by different persons, but in any case, company cannot purchase the agricultural land unless permission is received from the authority.
7.9 The learned Additional Advocate General again referred the order of the Collector dated 05.11.1997, more particularly, the operative part at page 81-E and 81-F and submitted that the observations are such that Hon'ble High Court has approved those entries by its order, which ought not to have been done. He was either required to approve the entry or reject the same and ought to have confined to the same only. The narration and observations are beyond the scope of revision and uncalled for. He submitted that by Rule 108(6) the Page 40 of 113 C/SCA/12502/2010 JUDGMENT Collector has got the powers of revision. The said order was carried in appeal before the SSRD under the jurisdiction vested under Section 211, which is decided by order dated 13.03.2002 (at page 104-H), by which, the order of the Collector dated 05.11.1997 came to be set aside. This order gave rise to certain petitions, one by the petitioner (Special Civil Application No. 8848 of 2002), other is by State (Special Civil Application No. 598 of 2003), next is by Shah brothers and one by the legal heirs of the Nawab of Vadodara. He referred the judgment and order passed by this Court in aforesaid petitions dated 08.08.2007 (starting from page pg. 105 onwards), more particularly, the observations made at pg. 133 onwards, relevant para 8, 17 and submitted that at that point of time, the petitioner was already facing the proceedings under the Ceiling Act and the Mamlatdar passed the order. So, the learned Single Judge had allowed the petition of the petitioner on the ground of gross delay, keeping all other issues open. This judgment and order was the subject matter of SLP before the Hon'ble Apex Court which was dismissed on the ground of delay only by order dated 26.08.2013, a copy of which is produced at Annexure 'III' at page 225. Thus, the entry Nos. 591 and 594 have attained finality. This order dated 26.08.2013 of the Hon'ble Apex Court was carried into Review Petition, which also came to be dismissed in by order dated 16.04.2014, a copy of which is produced at page 227. The learned Additional Advocate General submitted that, thus, in short, termination of the proceedings before the Hon'ble Supreme Court amounts to approval of the mutation entries only, keeping open all other issues. In this regard, the learned Additional Advocate General referred and relied upon a decision in the case of Indian Oil Corporation Limited Vs. State of Bihar, reported in (1986) Page 41 of 113 C/SCA/12502/2010 JUDGMENT 4 SCC 146, more particularly, para 8 and 12 of the same and also a decision in the case of Kunhayammed Vs. State of Kerala, reported in (2000) 6 SCC 359, more particularly, para 40, 41 and 43 of the same, both rendered by the Hon'ble Apex Court, on the aspect of dismissal of SLP. He submitted that it is summary disposal of the SLP. He then referred Article 136 of the Constitution of India and submitted that dismissal of SLP amounts to rejection to entertain the order challenged in the same. He submitted that accordingly, the only conclusion which can be drawn by the dismissal of the SLPs is entry Nos. 591, 594, 915 and other entries have attained finality and nothing beyond that.
7.10 The learned Additional Advocate General then referred the judgment of GRT dated 08.04.1976 and submitted that it holds Maganbhai Patel and 04 others to be the owners of the land in question, which was subject matter of challenge before this Court in Special Civil Application No. 4876 of 1992, which came to be dismissed in 1992 (on 30.07.1992) and was carried in SLP, which was dismissed on 02.01.2013 on the ground of delay and on merits (copy of order is produced at Annexure 'II', at page 221). Review Petition to which also came to be dismissed on 09.04.2014 (copy is produced at page
224). These orders indicate that ownership of Maganbhai Patel and others have attained finality, that is to say order dated 08.04.1976 has attained the finality. He submitted that the State do not question the right and title of Maganbhai Patel and others in this petition but the case of the State is that the State is not precluded from initiating the proceedings on other issues by any of the judgments either by High Court or the Supreme Court.
Page 42 of 113C/SCA/12502/2010 JUDGMENT 7.11 So far as submissions made by the learned senior advocate for the petitioner on the aspect of colourable exercise of powers are concerned, the learned Additional Advocate General submitted that first letter of the Collector is dated 24.08.1999 (pg. 202-D) addressed to the petitioner rejecting the request for additional 600 acres of land copy of which, was forwarded to the Mamlatdar & ALT, Choryasi with the direction to initiate the proceedings under the Ceiling Act. He submitted that it cannot be said to be a command so as to declare the land of the petitioner either way but it can be termed as information/intimation. He further submitted that it cannot be said to be the dictate, but it is conveying to verify the applicability of the Ceiling Act. In the said backdrop, he submitted that the petitioner was very much in know of this letter, which is now, according to the petitioner, is the command/dictate. The petitioner has accepted this letter, appeared before the authority and at no point of time, it has challenged this letter any where. Even, in the present petition, no challenge is there qua this letter to quash and set aside the same and it is only in the year 2018, in this petition, it is being contended that this letter is a command/dictate, which is not permissible and maintainable. He then invited the attention of the Court to Section 37 of the Ceiling Act, which refers the powers of Collector of revision and submitted that these powers are of controlling in nature over the Mamlatdar & ALT under the law with a view to check any arbitrariness, perversity and/or illegality. He submitted that the petitioner is never aggrieved by the letter dated 24.08.1999, in any of the proceedings and/or petitions, including the present petition and therefore, communication dated 24.08.1999 is a passing reference by the Collector, who is the revisional authority under the Ceiling Act Page 43 of 113 C/SCA/12502/2010 JUDGMENT and it cannot be construed to be the command/dictate. Therefore, the decisions referred and relied upon by the petitioner on this points are of no avail to the petitioner.
7.12 The Additional Advocate General referred the order of the Additional Mamlatdar & ALT dated 18.09.2000 (at page 149 to 162) to whom, the aforesaid intimation/information dated 24.08.1999 was conveyed by the Collector and submitted that had the Mamlatdar & ALT acted as per the so-called command of the Collector, this order, which is in favour of the petitioner, would not have been passed. He submitted that the Mamlatdar & ALT has decided the matter independently and observed that the provisions of the Ceiling Act would not apply and closed the Ceiling Case No. 1 of 2000 and also withdrawn the notice. He then supplied the typed copy of each details of the petition (entire chronology of the matter) and submitted that at no point of time the petitioner has ever raised any issue with regard to the letter dated 24.08.1999 and for quashing and setting aside the same. Even, the petitioner has also appeared in the proceedings before the Mamlatdar & ALT subsequent to the letter in question. He also submitted that taking advice in some proceedings particularly in quasi judicial proceedings, cannot be said to be dictate. He cited a decision in the case of Baldev Raj Chadha Vs. Union of India, reported in (1980) 4 SCC 321, more particularly, para 12, 15 of the same. He then referred the relevant portion from the book of Justice GP Singh on the aspect of dictate and command by the superior authority, more particularly, page 725 in which such principles are enumerated. He also referred page 750 and submitted that in dictate/command, there is a force and in the case on hand, only advice is there and hence, it is Page 44 of 113 C/SCA/12502/2010 JUDGMENT not the dictate/command.
7.13 The learned Additional Advocate General then submitted that the order of the Mamlatdar & ALT is dated 18.09.2000 holding that the land in question does not attract the provisions of the Ceiling Act. He then referred the document at page 202-G - typed copy, which is the intimation dated 22.01.2001 from the office of the Collector, Surat to the Deputy Collector, Choryasi Prant, Surat against and after the order of Mamlatdar & ALT dated 18.09.2000 directing the Deputy Collector to take the said in suo moto revision. He submitted that such directions with specific actions are for the reasons that the Ceiling Act requires certain procedures to be undertaken and accordingly, he referred the Ceiling Act, more particularly, Sections 20 10, 11 etc. On the aspect, he referred the order of Mamlatdar & ALT dated 18.09.2000, which stated to have been in favour of the petitioner and submitted that it is specifically observed in the said order that if the said land is improved it can be cultivable and then, the provisions of Ceiling Act would apply. He submitted that these findings have never been challenged by the petitioner. The learned Additional Advocate General then referred the observations made in the said order, more particularly, at page 152, 154, 156, 159 and submitted that there same observations like above have been made in the same. He also the written submissions filed by the petitioner before the Deputy Collector in revision proceedings (starts from page
163), which also refer the same thing i.e. 'if improvement is done in the land then agriculture is possible'. He then referred the impugned order of the GRT, more particularly, the observations at page 200 and submitted that in the same also, it is observed that no evidence is Page 45 of 113 C/SCA/12502/2010 JUDGMENT produced by the either party as to whether the land is 'Agricultural land' or 'Khar land' etc. 7.14 He then referred the document produced by the petitioner at page 202-EE, which describes the definition of 'Pot Kharaba' and submitted that Khar land is also a cultivable land. He referred para 2 of the same and submitted that there are two types of 'Pot Kharaba' i.e. 'cultivable' and 'uncultivable' and in the case on hand, whether the land is cultivable or uncultivable, such inquiry is yet to be made. Then he referred the provisions of Sections 11 and 12 of the Ceiling Act and submitted that if a person liable to furnish a statement or affidavit under Section 10 fails, without reasonable cause, to furnish the statement, or affidavit, or furnishes a statement or affidavit containing incorrect particulars, with an intention to suppress the information about surplus land held by him then he shall be liable to a penalty and all surplus lands shall be deemed to be needed for a public purpose and may be acquired by the State Government in accordance with the provisions of this Act. Accordingly, he contended that even if the land is 'Khar land', in that case also, one has to undergo the procedures enumerated under the law for getting the land exempted from provisions of the Ceiling Act.
7.15 The learned Additional Advocate General next submitted that the powers of the Collector are delegated to the Deputy Collector by order (Circular) of the State Government in Revenue Department dated 03.05.1982. Under Section 37 of the Ceiling Act, the revisional powers are vested which may be within time limit. Once the State has delegated the powers under Section 37 of the Ceiling Act to the Page 46 of 113 C/SCA/12502/2010 JUDGMENT Deputy Collector, the Collector would not be in a position to take cognizance and hence, he referred the matter to the Deputy Collector and hence, there is no illegalities or colourable exercise of powers in passing the order dated 22.01.2001. In this regard he referred and relied certain case laws as under:
i) Manubhai Bhikhabhai Valand Vs. State of Gujarat, reported in 1996 (3) GCD 759, more particularly, para 6 and 7 (in relation to S. 211 of the Bombay Land Revenue Code);
ii) Gangaben Vs. Collector, Surat, reported in 1999 (1) GLR 488, more particularly, para 5, deals with impact of revenue entries and such other issues; mutation entries do not confer any right and/or title in the property to anyone;
iii) State of Jharkhand Vs. Shivam Coke Industries, Dhanbad etc., reported in (2011) 8 SCC 656, more particularly, para 27, 28, on the aspect as to how the powers vested are to be exercised.
iv) Bhavnagar Municipal Corporation Vs. Palitana Sugar Mills Pvt. Ltd., reported in (2004) 12 SCC 670, more particularly, para 7.
7.16 The learned Additional Advocate General then proposed to refer the provisions of the Ceiling Act. Before that, he referred Schedule 9 of the Constitution of India, in which Bombay Tenancy and Agricultural Lands Act, 1948 (for brevity, "the Tenancy Act") and the Ceiling Act have been placed in the 9th Schedule respectively at Sr. 2 and 31. He submitted that it gets validation under Article 31-B of the Page 47 of 113 C/SCA/12502/2010 JUDGMENT Constitution of India. He further submitted that he refers such because special provisions have been made under the Ceiling Act and that the tenor of this Article is important. He then referred Section 5 of the Tenancy Act, which prescribes Ceiling Area and then Section 63, which prescribes for bar from transfers to non-agriculturists. He also referred Sections 65 and 65(A) of the Code which prescribes the procedure for converting the land from agricultural to non-agriculture land. In this background, he referred certain provisions of the Ceiling Act viz. objects and reasons of the Act; Section 2(17) definition of Land; Section 5 Ceiling Area, more particularly, the proviso to section and Section 10 - holder of the excess land to furnish the particulars of land to the Mamlatdar. He submitted that on 01.04.1976, every person holding excess land, including exempted land, should supply certain information as prescribed under this section, which is the statutory obligation, which, neither the petitioner nor its predecessors-in-title have done so, which is clear-cut overreaching the provisions of the Ceiling Act. He then referred other procedural provisions of the Ceiling Act. Section 9 (Consequences of acquisition of land in excess of area permitted under section 6) read with Section 26 (Inquiry as respect land held in contravention of section 9). He also referred Section 7 of the Ceiling Act and submitted that it is on the aspect as to what is the effect of exempted land and the effect of transfer of land after the commencement of the Ceiling Act. He submitted by the provisions of Section 7 after commencement of this Act, no one can transfer the land, except with the permission of the Collector. He submitted that Section 3 provides for 'Exempted Land'. He emphasized on Section 3(1)(aa) and submitted that there is no automatic exemption but for Page 48 of 113 C/SCA/12502/2010 JUDGMENT that the provisions and procedures of the Ceiling Act have to be undergone. He then referred Sections 3(1)(a) to 3(1)(d) of the Ceiling Act regarding exemption of land and submitted that application is required to be made for issuance of the Exemption Certificate and it is obligatory on the part of the petitioner to get the same. The petitioner has never made such an application nor any certificate whatsoever has been produced. He then referred Sub-section (2) i.e. revocation of exemption on failing to satisfy the provisions of Sub- section (1) and submitted that thereby, the powers of the Collector remain constant. He submitted that Sub-section (4) of the Ceiling Act provides for no exempted land can be transferred without previous permission of the Collector and thus, there is clear prohibition for transferring the land. He then referred the categories of land. So, in the submission of the learned Additional Advocate General, there is statutory obligation on the party who holds the excess land than the ceiling prescribed under the Ceiling Act to undergo certain procedures as enumerated in the Ceiling Act, which are not undergone in the present case. He then referred Gujarat Agricultural Lands Ceiling Rules, 1961. He also referred the provisions of the Gujarat Khar Lands Act, 1963 (repealed as on now from 07.06.2000), more particularly, the definition of 'Khar Land' under Section 2(d). He submitted that mere reference of the land as 'Pot Kharaba' in the revenue record, which is meant for revenue purpose, does not make the land to be the Khar Land. The petitioner has failed to perform its statutory duty and even if the petitioner is eligible, the petitioner is required to undergo procedures prescribed under the law.
7.17 The learned Additional Advocate General then referred the affidavits Page 49 of 113 C/SCA/12502/2010 JUDGMENT filed by the State. He referred first affidavit dated 29.09.2014 (starts from page 284), more particularly the portion on page 287 onwards, which narrates specific contention of the State that land is amenable to the provisions of the Ceiling Act. He then referred second affidavit filed by the State dated 11.04.2016 (starts from page 294), more particularly, para 4 onwards. Then he referred the third affidavit dated filed by the State 04.12.2017 (starts from page 378) and then the affidavit dated 01.02.2018 of the State affirmed by the Mamlatdar & ALT, Choryasi (starts from page 994). He submitted that notice was issued to all the persons so as to see that nobody remains unheard. He then referred the affidavit dated 11.03.2018 filed by the State (starts from page 1005) which is affirmed at Valsad by Mamlatdar & ALT, Choryasi and submitted that this affidavit only presents certain documents. Besides, he submitted that quasi judicial authority is competent to file such an affidavit; besides, it is also joined as party; further, here, it is the matter between the private and quasi judicial authority and accordingly, such authority can place all the details in the petition. He submitted that the contents of the last affidavit in no way point out anything else then placing certain documents on record.
7.18 The learned Additional Advocate General then again referred the affidavit dated 11.04.2016, more particularly, the contents of the same at page 310 on the aspect of Pot Kharaba Land and submitted that this has triggered an interesting point. He read over the definitions of the 'Khar Land' and the 'Tidal Land' as prescribed in Sections 2(d) and 2(h) respectively, in the Gujarat Khar Lands Act, 1963 and submitted that accordingly, 400 meters of land from the Page 50 of 113 C/SCA/12502/2010 JUDGMENT river or ocean bed, would be the tidal/khar land unless it is made cultivable. Thus, only the land in the radius of 400 meters could be the khar/tidal land as per the above definitions given in the Gujarat Khar Lands Act, which could be exempted in accordance with law.
7.19 On the aspect of expert's opinion about the land in question i.e. the report of the agricultural university, the learned Additional Advocate General submitted that letter of Collector, Surat addressed to the Vice Chancellor, Agricultural University, Navsari is dated 15.12.2010 (at page 202-L, Annexure 'Q') , the impugned order in the present petition is dated 11.05.2010 and the petition challenging the said order was admitted on 24.09.2010. Thus, this letter is issued after the present petition was admitted by the Court. He submitted that neither the GRT nor this Court has passed any order to get such expert's opinion and hence, the Collector could not have issued such a letter pending this petition. He further submitted that if this communication is seen, the Collector is dealing with the subject under the Ceiling Act under Section 37 of the same. It is submitted that the Collector had no pending proceedings before it while issuing such a letter, without any application on either side, on his own and the said action of the Collector is against the powers vested in him under the law. Besides, it is with heading 'Khangi' (i.e. 'Confidential'), which is also doubtful. The learned Additional Advocate General then referred expert's opinion viz. the report of the agricultural university dated 03.03.2011 (at page 228), which, he strongly objected to consider in the present petition for the aforesaid reasons. He then referred Gujarat Agricultural Universities Act and submitted that on one hand, the Collector passes order which is against the law and on the other hand, Page 51 of 113 C/SCA/12502/2010 JUDGMENT the University, which is functioning under the Gujarat Agricultural Universities Act, undertakes analysis of the land in question and sends report, which is per se illegal. He the referred the report of the university, captioned as Soil Analysis Report, more particularly, para 3 on page 229; the details of samples and other such material narrated from page Nos. 231 to 239 and the conclusion on page 241 onwards and submitted that if one goes by this report, in that case, substantial part of Saurashtra and other region of the State of Gujarat would go into that. He, then referred Section 45 of the Evidence Act, 1872 and Section 293 of the Code of Criminal Procedure, 1973 so as to suggest the prescribed methodology and submitted that thus, whether Collector has any jurisdiction in writing above letter and whether the university has power and function to give such opinion are the mute question and the answers to such question would be in negative. The learned Additional Advocate General then submitted that the petitioner has produced the above report by affidavit on 11.03.2014, but the fact remains that such report is without any order or direction and/or vested jurisdiction of the Collector and that too pending the petition. He submitted that order dated 07.07.2003 passed by the Deputy Collector, Choryasi Prant, Surat was the subject matter before the GRT and on 11.05.2010 the GRT has passed the order, which is the subject matter of challenge in this petition and post these proceedings, the Collector has acted as aforesaid. He submitted that, in any case, what is relevant is, whether this subject is within exemption clause under Section 3(1)(aa) of the Ceiling Act and that may be the point of consideration.
7.20 The learned Additional Advocate General then referred the letter Page 52 of 113 C/SCA/12502/2010 JUDGMENT dated 15.09.2014 (at page 202-C), written by the Deputy Secretary, Revenue Department, State of Gujarat, addressed to the Collector, Surat by which, the decision of the State Government to accept the orders of the Hon'ble Apex Court dated 09.04.2014 and 16.04.2014 passed in the respective review petitions has been conveyed to him. He then referred the letter dated 28.04.2003 (at page 202-I), written by the Resident Deputy Collector, Surat to the Deputy Collector, Choryasi Prant, Surat. He also referred the letter dated 06.08.2008 (at page 202-N), written by the District Inspector Land Records, Surat addressed to the Additional Mamlatdar & ALT, Choryasi, Surat, in response to the letter of the Mamlatdar & ALT dated 28.07.2008, which refers the land in question to be the 'Khar no Kharaba'. Moreover, he referred the Durasti Patrak (at page 202-P), which also describes the land in question as 'Khar no Kharaba'. He submitted that, however, in any case, it is up to only 400 meters of land as said earlier and for excess land, one has to apply under the Ceiling Act as aforesaid. He then referred the Collector's Manual (authored by Mr. F.G.H. Anderson), more particularly, the description with regard to the Kami Jasti Patrak i.e. Correction Statement and submitted that based on these broad guidelines, the Collector has to take the steps.
7.21 The learned Additional Advocate General then referred the application made by one Mr. Shailesh Shah, office bearer of petitioner - company seeking certain information under RTI about application of Ceiling Act (Annexure 'S', page 202-V) by which, two specific questions were asked. He submitted that under RTI knowledge is not to be provided but it is information, which is to be provided. To substantiate such a fact, he referred Section 2(f) of the Page 53 of 113 C/SCA/12502/2010 JUDGMENT RTI Act. He submitted that however, the State has answered such questions by letter dated 01.04.2009, which suggests that the Ceiling Act does not apply to the 'Khar Kharaba' land but this answer does not become the law as the legislative provisions cannot be obliterated by such answers. He further referred another application of Mr. Shailesh Shah under the RTI Act of 2010, received by the concerned department on 24.11.2010 seeking certain information and replied by letter dated 12.01.2011 (at page 202-BB with 202-EE). He referred para 2 (on page 202-EE) of the information provided with regard to the 'Pot Kharaba' land so as to suggest that Pot Kharaba is of two types i.e. 'uncultivable' and 'cultivable'. He then referred the reply dated 01.06.1985 to the application of Mr. J. B. Nagarsheth, Advocate, Surat, (Annexure 'VI', page 246) and submitted this may be viewed along with the details supplied in the further affidavit filed by the State dated 11.03.2018. In this regard, he referred the details of sale deeds effected by the petitioner, as reflected in page 1008 onwards and submitted that the sale deeds have been executed on different dates and that the petitioner has acquired property rights by these sale deeds. He then again referred the above-referred reply dated 01.06.1985 and submitted that one learned advocate writes to the Assistant Collector and on 01.06.1985 Assistant Collector gives reply. The Sale Deeds starts from 19.10.1985 onwards as reflected from page 1008. Therefore, these events would indicate that the petitioner, in a very careful manner, by defeating the provisions of certain land laws, has acted in such a manner so as to escape and overreach the provisions of the Ceiling Act. In this set and background of facts, first Maganbhai Patel declared as owners on 05.10.1976 and entries have been recorded; prior thereto, in the year Page 54 of 113 C/SCA/12502/2010 JUDGMENT 1969, they have entered into agreement with 67 persons ranging from the persons aged 04 years to the old aged persons, who stayed at different places; on 09.12.1976, based on Agreement, these 67 persons got their names entered into the revenue record vide entry No. 594. Thus, the attempt on the part of the petitioner and their predecessors is to by-pass and escape the provisions of the Ceiling Act by creating agreements, arrangements and document and transfer of immovable property without any registration and thereby, the petitioner company and its predecessors have contravened the provisions of the Ceiling Act by-passing the statutory liabilities and obligations. He submitted that indisputably, the petitioner's land is not a non-agricultural land because no evidence to suggest otherwise is produced.
7.22 In above backdrop, he referred certain decisions:
i) Shrimant Ranjitsinh P. Gaekwad Vs. State of Gujarat, reported in 2007 (2) GLH 145, more particularly, para 1, 2 and 6 onwards, on the point of entry in the revenue record holding certain land to be non-agricultural would not exempt from the provisions of the Ceiling Act.
ii) Judgment and order dated 01.02.2007 passed in SCA No. 11238 of 1994, more particularly, para 4 onwards (the reasoning part) (It is submitted that the issue involved in that matter directly deals with the issue as is in this case. The Letters Patent Appeal No. 1191 of 2010 filed against that judgment and order is also dismissed).Page 55 of 113
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iii) The learned AAG made a passing reference to the decision in the case of shrikant Bhalchandra Karulkar and Others Vs. State of Gujarat and Another, reported in 1994 (2) GLH 397, para 9.
iv) He then referred and relied upon a decision rendered by the Division Bench of this Court in the case of Khachar Godabhai Mithabhai Vs. State of Gujarat, reported in 2004 (2) GLH 589, more particularly, para 4, 5.1, 5.2, 5.4. He submitted that this judgment of the High Court was confirmed by Hon'ble Apex Court by judgment reported in (2010) 10 SCC 594 (para 9, 11).
v) State of Gujarat Vs. Manoharsinhji Pradyumansinhji Jadeja, reported in (2013) 2 SCC 300 (It is submitted that in this, broad definition of land was referred. He referred that these two judgments have defined the contours of the Ceiling Act).
vi) Ahmedabad Municipal Corporation Vs. Rataji Gandaji Thakore, reported in 2005 (2) GCD 1476, more particularly, para 11, 12 and 13 (on the aspect of remand of matter and scope and powers of the Mamlatdar.)
vii) State of West Bengal Vs. Samar Kumar Sarkar, reported in 2009 (15) SCC 444 (on the aspect that petition under Article 227 of the Constitution of India has very narrow and limited scope. For Article 227, he submitted that there is no jurisdictional error in the impugned order by GRT and therefore, the petition under Article 227 is not maintainable and the authority has rightly used the jurisdiction conferred upon it).Page 56 of 113
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viii) Bhubneshwar Development Authority Vs. Adikanda Biswal, reported in (2012) 11 SCC 731, more particularly, para 18 (on the aspect of petition Article 226 Constitution of India. It is submitted that the petitioner may contend that the authority has abuse its power, but the present case does not call for any interference or facts do not suggest any error in decision making process).
7.23 The learned Additional Advocate General then again referred the prayers made in the petition so as to suggest that such prayers cannot be granted. He submitted that writ in the nature of Mandamus or any other writ is sought for and accordingly, he referred Article 226 of the Constitution of India. He supplied the relevant abstract from the book written by Hon'ble Mr. Justice CK Thakkar on issuance of various writs. He referred Writ of Mandamus i.e. commanding something to be done. He referred Writ of Prohibition and submitted that the petitioner has not prayed for issuance of Writ of Prohibition. He then referred Writ of Certiorari. He submitted that Writ of Mandamus is to command the authority and by praying for such a writ, a prayer is made by the petitioner in the present petition to prohibit a particular authority from taking certain actions, which is not permissible. So the nature of reliefs sought for in the present petition to the extent it seeks writ of mandamus, is not maintainable. So far as Writ of Certiorari is concerned, in the facts, it may not be issued for the reason that neither the GRT nor the Mamlatdar & ALT has excessed its jurisdiction and their orders do not suffer from any illegalities or perversity or arbitrariness.
7.24 The learned Additional Advocate General submitted that, by the Page 57 of 113 C/SCA/12502/2010 JUDGMENT efflux of time, the Hon'ble Supreme Court has evolved sixth writ in the nature of declaratory writ, but in the facts and circumstances of the present case, such declaratory writ also cannot be issued. Further, for the writ of Certiorari no ground is made out.
7.25 The learned Additional Advocate General then, on the issue of Maintainability of the petition, raised two main points vis. for filing the petition by the petitioner company, no resolution, no authorization is forthcoming on record. He submitted that in view of the decision in the case of State Trading Corporation of India Ltd. Vs. The Commercial Tax Officer and Others and The Asst. Supdt. of Commercial Taxes, Bihar and Others, reported in AIR 1963 SC 1811, more particularly, para 18, 23, 28, 31, 39 and 42, rendered by 09 Hon'ble Judges of the Hon'ble Apex Court and the decision in the case of The Tata Engineering and Locomotive Co. Ltd., etc. Vs. The State of Bihar and Others, etc., reported in AIR 1965 SC 40, more particularly, para 20, a company cannot seek breach of fundamental right as it is not a living creature and hence, it cannot seek breach of fundamental rights more particularly, because, the company is not a citizen. The writ petition is solely filed by the company. There is no reference in the entire body of petition as to whom the Company (petitioner) has made authorized to file the writ petition and to affirm it before the High Court. Besides, trying to improve by saying at the time of filing of amendment, somewhere it was mentioned, would not exempt the petitioner from such statutory obligation. Further, at different stages, different persons have affirmed and filed the affidavit. The affidavit is not in accordance with Gujarat High Court Rules, more particularly, Rule 174. On this, he relied upon two Page 58 of 113 C/SCA/12502/2010 JUDGMENT decisions i) J. A. Goraswa & Another Vs. DIG and IG Police, Gujarat State & Another, reported in 1995 (2) GLR 1666, para 8 and 9 and ii) Vasantbala H. Mehta Vs. Dolat Anant Valia New High School & Others, reported in 1998 (3) GLR 1849. He submitted that in the decision rendered by the nine Hon'ble Judges' Bench (supra) it is clearly observed that a company cannot seek violation of fundamental rights. The petitioner has claimed violation of Article 19 also, which a company cannot do as it is not a living person and a citizen. There should be a living co-petitioner in the petition.
7.26 The learned Additional Advocate General referred 08 decisions relied upon by the learned senior advocate for the petitioner on the colourable exercise of powers and controverted the same to substantiate his submission that it cannot be said to be the colourable exercise of powers. He submitted that no where the Collector has directed to act in a particular manner, nor has he passed any order that there is holding of 1600 acres of the petitioner and therefore take away the excess land in accordance with the Ceiling Act.
7.26.1 He referred the First decision relied upon by the learned advocate for the petitioner, rendered in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 and referred para 4, 5, 7 and 31 and submitted that in that case there was no application of mind by the licensing authority in cancelling the licence and the Commissioner of Police had simply followed the directions of the State Government. As against that, in the case on hand, the Mamlatdar & ALT has applied the mind and taken its own decision giving reasoning in accordance with law and hence, this Page 59 of 113 C/SCA/12502/2010 JUDGMENT decision is not applicable in the case on hand.
7.26.2 On Second decision relied by the petitioner, rendered in the case of the Purtabpore Company Ltd.) Vs. Cane Commissioner of Bihar and Others, reported in 1969 (1) SCC 308 (para 11), he submitted that this decision is also not applicable to the case on hand because in this case also, the competent authority had only signed the order and had not applied its mind while taking the impugned action. It was under the direction of the Hon'ble Chief Minister. Hence, this decision is not applicable in the case on hand.
7.26.3 On Third decision, relied by the petitioner, rendered in the case of Orient Paper Mills Ltd. Vs. Union of India, reported in 1970 (3) SCC 76, (para 2, 4), he submitted that it was under the direction of the Collector and the concerned authority had acted as per the directions of his superior and not applied his mind, no room was there for the Assistant Collector to apply his mind. Hence, this decision is not applicable in the case on hand.
7.26.4 On Forth decision, replied by the petitioner, rendered in the case of Anirudhsinhji Karansinhji Jadeja and Another Vs. State of Gujarat, reported in (1995) 5 SCC 302 (para 6), he submitted that in that case, the Home Secretary had directed to act in a certain manner and the DSP had acted accordingly, without applying his mind, as per the directions of the Home Secretary. Hence, this decision is not applicable in the case on hand.
7.26.5 On Fifth decision, relied by the petitioner, rendered in the case of Page 60 of 113 C/SCA/12502/2010 JUDGMENT Pancham Chand and Others Vs. State of Himachal Pradesh and Others, reported in (2008) 7 SCC 117 (relevant para 2), he submitted that it was under the direction of the Chief Minister and the concerned authority had acted as per his directions and not applied his mind. Chief Minister has no power to issue such a permit and he directed the concerned to issue the permit and the concerned authority had issued the same under his direction, without applying his mind. Hence, this decision is not applicable in the case on hand.
7.26.6 On Sixth decision, relied by the petitioner, rendered in the case of Manohar Lal (dead) by LRs. Vs. Ugrasen (dead) by LRs. And Others, etc. reported in (2010) 11 SCC 557 (para 2, 6, 7, 23, 29, 44), he submitted that it was on the aspect that can revisional authority take charge of its lower statutory authority. It was held that no revisional authority can take charge of his inferior authority. It was held that it was colourable exercise of powers as the revisional authority had entertained the proceedings of its inferior authority, which is against the tenor of law. So, in the facts and circumstances of that case, this decision is not applicable in the case on hand.
7.26.7 On Seventh decision, relied by the petitioner, rendered in the case of Bahadursinh Lakhubhai Gohil, reported in (2004) 4 SCC 65, referring para 6 and 8 of the same, he submitted that this decision is also not applicable in the case on hand.
7.26.8 On Eighth decision, relied by the petitioner, rendered in the case of Bhil Ambaji Vs. State of Gujarat and Another, reported in (1996) 2 GLH 272 = 1996 SCC Online Guj 124, he submitted that in that case, Page 61 of 113 C/SCA/12502/2010 JUDGMENT in spite of statutory provisions and statutory order, the Collector had acted against that order and provisions of law on the basis of some instructions from the State Government, without application of mind, in accordance with law and hence, this decision is also not applicable in the case on hand.
7.27 So, in sum and substance, the learned Additional Advocate General submitted that colourable exercise of powers would be only if the authority acts under direct command and dictate of some superior authority and without following the due procedure of law and without application of mind and simply acts as per the directions given, which is not the case in the case on hand and accordingly, none of the above judgments have any similarity of facts and hence, no application of the same. Here, in the case on hand, no specific directions have been given by the superior authority to act in a certain manner and no specific action in pursuance thereto has been taken by the lower authority.
7.28 On the 07 decisions cited by the petitioner on agricultural, agricultural land, agricultural purpose etc., the learned Additional Advocate General submitted that one of the decisions, rendered in the case of Commissioner of Wealth Tax, Andhra Pradesh Vs. Officer In-charge (Court of Wards), Paigah, reported in (1976) 3 SCC 864 deals with provisions of Wealth Tax Act, which has no application to the case on hand. He submitted that all other decisions deal with certain tax matters like Wealth Tax, Income-Tax Act and hence, no application to the facts of the present case. He vehemently submitted that no other case law could to be considered except which arises out Page 62 of 113 C/SCA/12502/2010 JUDGMENT of the Ceiling Act for the purpose of definition of Agricultural, Agricultural land etc. He relied upon a decision of the Hon'ble Apex Court, rendered in the case of Maheshwari Fish Seed Farm Vs. T. N. Electricity Board, reported in (2004) 4 SCC 705, more particularly, para 10, 16 and submitted that the scope of definition of land would be different for application of different law and hence, the definition which deals with the provisions of the Ceiling Act would only be taken into consideration. There may be narrower and elaborate definitions of the land as per the subject of the law and accordingly, it is interpreted. He referred certain decisions relied by the petition (from the spiral booklet at, page 77, 87, 135 (page 154, para 52, 54,
55), 159 (para 35 to 37), 176 (para 10 on pg. 179, para 20, 29), etc.) and submitted that none of the said decisions is in relation to the Ceiling Act and hence, not applicable to the present case. Section 2(17) of the Ceiling Act deals with the Agricultural Land and it would be subject to the provisions of the Ceiling Act.
7.29 On the decisions relied by the petitioner on the aspect that the matters not to be remanded back to the lower authorities, the learned Additional Advocate General submitted that GRT is clothed with the powers under Section 38 of the Ceiling Act. He also referred Section 41 of the Ceiling Act in this regard. He then referred and relied the decision rendered in the case of Lallubhai Morarjibhai Patel through His Heirs Vs. Deputy Collector, reported in 1996 (2) GCD (UJ) 52, more particularly, the Head Notes. He then referred and relied the decision rendered in the case of Punjab Roadways Moga through its General Manager Vs. Punja Sahib Bus and Transport Company, etc. reported in (2010) 5 SCC 235, more particularly, para 27. He also Page 63 of 113 C/SCA/12502/2010 JUDGMENT referred and relied upon a decision of this Court rendered in the case of Employees Provident Fund Organization Vs. Faze Three Limited, reported in 2015 JX (Guj.) 985, more particularly, para 11. The learned Additional Advocate General then referred the 05 decisions relied by the petitioner on the aspect that this Court may exercise jurisdiction and may quash and set aside the part of the impugned order remanding the matter and submitted that in the facts and circumstances of the case on hand, they may not be helpful to the petitioner.
7.29.1 He referred the first decision, relied by the petitioner, rendered in the case of Devendra Chandulal Shah & Others Vs. Shambhu Ruda Ayar, dated 08.05.2008, passed in Special Civil Application No. 3482 of 2008, more particularly, para 10 onwards and submitted that in that view of the matter this decision would not be applicable to the present case.
7.29.2 On second decision, relied by the petitioner, rendered in the case Patel Mohanbhai Ishwarbhai Vs. State of Gujarat, reported in 2007 (1) GCD 540, more particularly, para 3, 6, 7, 8, it is submitted that on 26.12.1980, the petitioner purchases NA Land and after 8 years i.e. on 05.12.1988 State Government initiates proceedings under the BLRC and accordingly, on facts, this decision would not be applicable to the present case.
7.29.3 On third decision, relied by the petitioner, rendered in the case of Darabsha Sorabji Vs. State of Gujarat, reported in 2005 (2) GLR 1409, he submitted that the petitioner does not want to undergo the Page 64 of 113 C/SCA/12502/2010 JUDGMENT procedure prescribed under the law, which is illegal and hence, this decision would not be applicable to the present case.
7.29.4 On forth decision, relied by the petitioner, rendered in the case of Jayant Krashnabhai Karulkar Vs. State of Gujarat and Other 03, dated 23.09.2014 passed in Special Civil Application No. 7797 of 1999, he submitted from the reasoning part para 7, 8 that the matter was already remanded earlier and hence, again remanding would not serve the the purpose and it is under this circumstance, the matter was not remanded. Hence, this decision would not be applicable to the present case. LPA against this order was dismissed.
7.30 Thus, in the submission of the learned Additional Advocate General, the decisions relied by the petitioner are not applicable to the facts of the present case.
7.31 The learned Additional Advocate General submitted that the land is waste land and under the provisions of Ceiling Act, all Khar Lands do not necessarily become exempt and only tidal land, that too, up to certain radius, would be exempt. He submitted that if the land is cultivable, on that submission only, the Ceiling Act would applied. Further, if an authority is charged with certain functions, it has to discharge the same.
7.32 The learned Additional Advocate General relied upon a decision rendered in the case of State of Kerala Vs. Kandath Distilleries, reported in (2013) 6 SCC 573, para 27, 32 (= AIR 2013 SC 1812) on the aspect of powers of authority and scope of Hon'ble High Court to Page 65 of 113 C/SCA/12502/2010 JUDGMENT issue mandamus under Article 226 of the Constitution of India. He submitted that the colourable exercise of powers would be only in case the powers are used with some extraneous consideration. The authorities have acted without any bias and in a fair manner. The order passed by the Mamlatdar & ALT on 18.09.2000 is the testimony of independent exercise of powers. There is no direct material to substantiate the fact that the powers are exercised as per the dictate/command.
7.33 On the aspect of delay, the learned Additional Advocate General submitted that this submission would not lie in the mouth of the petitioner. He supplied the events of the case and read. It is submitted that it is 1960 Act amended in the year 1976 and it is known that in 1961 there was a cap of holding of certain area of land, but on 18.08.1969, Agreement is undertaken with 67 persons. Thereafter, between October 1969 to December 1969, the family members of Nawab sold the land to Maganbhai and 04 Others. Thus, prior to Sale Deed came into effect, the land was distributed between 67 persons in August 1969. On 05.04.1975, the Mamlatdar holds that it is the Government land. The GRT, on 08.04.1976 holds the land to be of private land. Then, entry Nos. 591 and 594 were mutated in the revenue record. He submitted that the onus is on the holder of the land to furnish certain details in prescribed form under Section 10, 11 of the Ceiling Act. Then, petitioner purchases the land in question from these 67 persons. Then, the petitioner company states that the actions are taken belatedly. He submitted that the petitioner company can do anything disobeying the provisions of relevant laws.
Page 66 of 113C/SCA/12502/2010 JUDGMENT 7.34 Thus, making above submissions, the learned Additional Advocate General urged that the petition may be dismissed.
8. I have also heard Mr. SN Thakkar, the learned advocate for the respondent No. 6. He submitted that out of 2814 acres, 1673 acres of land of Survey No. 506 had been purchased by the petitioner. At the outset he submitted that Special Civil Suit filed by the respondent No. 6 and others had been dismissed, against which, First Appeal and the SLP filed before the Hon'ble Apex Court, also came to be dismissed. He then referred the affidavit filed on behalf of the respondent No. 6, more particularly, para 4.1 onwards. He also referred that Chart of distribution of land, produced at Annexure 'R-IV' colly., more particularly, the details at page 435, 436, 440. He submitted that on page 440, the branch No. 1(C), 07 names have been mentioned to which, the respondent No. 6 belongs. He then referred affidavit para 4.6 (at page 391 onwards) and submitted that without consent of the co-sharers, the subject land was transferred on lease by different registered Lease Deeds to lessee namely Babusaheb Bajirao Savant in the year 1953. However, thereafter, in the year 1955, the lessee issued notice for termination of lease. He submitted that since the land of survey No. 506 (old No. 400) was omitted at the time of survey, later it was entered in the Government record as 'Padtar Land' from December 1968 onwards vide Entry No. 374. He submitted that despite above, some of the co-sharers sold the subject land without consent of other co-sharers to Maganbhai Patel and others i.e. the predecessors-in-title of the petitioner. It is submitted that when said Maganbhai and others applied for entering their names as purchasers in the revenue record, the same was initially recorded as Entry Nos.
Page 67 of 113C/SCA/12502/2010 JUDGMENT 496, 497, 498, 499, 500 and 501, however, the said entries were not certified and cancelled on the ground that the names of sellers i.e. the original sharers were not there in the revenue records. In support of such contention, he invited attention of the Court to copies of revenue Entry Nos. 496 to 501 produced at Annexure 'R-IX' colly. He submitted that subsequently, the Mamlatdar, Choryasi initiated inquiry under Section 37(2) of the Code being Inquiry Case No. 2/72, which was decided against the purchasers - Maganbhai and others on 05.04.1974 by holding the land to be the Government land. He then referred affidavit para 4.13 onwards (page 397 r/w. page 74) and submitted that though the remaining land of survey No. 506 admeasuring 1138 acres and 08 gunths was never the subject matter of appeal proceedings before the GRT nor the order dated 08.04.1976 of GRT contained any direction in that regard, name of B. P. Vyas was recorded surreptitiously who was a serving City Survey Office at Surat, as a permanent tenant of Ashwin Brothers vide Entry No. 861. He submitted that the purchasers were Maganbhai Patel and other 4 persons, then how come name of Mr. B. P. Vyas cropped up, is a matter of investigation. He then referred the details of suits and other litigation mentioned in the affidavit in para 4.29 at page 403, para 4.32 r/w. page 859 to 887, para 4.33, para on page 406 on the top r/w. page 888 (dismissal of suit), against which First Appeal was filed which was dismissed, order is on page 908 and SLP was also dismissed vide order at page 939, para 4.37.
8.1 On the aspect of 'Khar Land', he referred para 6.2 of the affidavit (at page 408) and submitted that impugned order in no way prejudices the petitioner inasmuch as the inquiry upon remand would make it Page 68 of 113 C/SCA/12502/2010 JUDGMENT clear that whether the land in question is exempted under the Ceiling Act being 'Khar Land' as defined in the Gujarat Khar Lands Act. He further submitted that the competent authority is certainly empowered to exercise its rights and inquire into the said issue. He also submitted that under the law, a holder of land in required to make an application to the Collector, who shall make inquiry under the Khar Lands Act and certify that the land is a 'Khar Land' and admittedly, in the case on hand, no such application has been made by the petitioner and thus, in absence of such an inquiry, the order of remand would fill up the lacuna. Mr. Thakkar, then referred some portion of para 6.4 of the affidavit (at page 413) and submitted that under the provisions of the Ceiling Act, the holder of the land in excess of the ceiling area, including exempted land, is obliged to furnish the particulars thereof to the authority concerned. It is submitted that exemption certificate is required after undergoing the procedures prescribed under the law. On the contents of the petition, he referred para 5C (on page 19) of the petition on the aspect that the land is 'not cultivable' and submitted that dispute is by petitioner itself that the land is uncultivable. In a petition under Article 226 of the Constitution of India, this Court very much refer the matter to the fact finding authority. He then referred the order of the Mamlatdar & ALT dated 18.09.2000, more particularly, page 155, 156, 159 and submitted that it is specifically observed therein that if improvement is done, the land can be cultivable. He then referred par 5(C) of the petition r/w. page 80 (which is the part of order dated 05.11.1997) on the aspect of whether land is cultivable or not and submitted that the observations made that the land is not cultivable unless it is improved, have come from the submissions of the present petitioner Page 69 of 113 C/SCA/12502/2010 JUDGMENT only and hence, it may not be given much importance or of not much importance and reliable. He also submitted that record from the authority concerned, may throw light on this aspect. He then referred page 154, 155, 156 (starts from page 149) and submitted that it reflects the same observations and it appears to be the part of submissions of the present petitioner as a party therein and it is not the finding of the authority but the submission of the petitioner and hence, it cannot be the finding and/or observation. He then referred page 163, 164 (para 2, 3) which are the submissions of the petitioner before the Deputy Collector. He submitted that the findings recorded in the order dated 05.11.1997 have been made as base for submissions before the Deputy Collector. He then referred the order of Deputy Collector, Choryasi Prant, Surat dated 07.07.2003 (starts from page 171) and drew attention to and relied upon the observations at page 172, 173, 178, 179 and submitted that a detailed exercise has been done and the GRT has rightly remanded the matter. He then referred the Written Submissions filed by the petitioner before the Deputy Collector (at page 163 onwards, relevant is at page
166) and submitted that it is observed that there is no exemption and/or notification thereto, which is required under the law.
8.2 Mr. Thakkar, then referred the letter dated 03.06.1985 written by the Assistant Collector, Choryasi Prant, Surat to Advocate Shri J. B. Nagarsheth (at page 246) for the predecessors-in-title of the present the petitioner and submitted that this letter says that the land can be cultivable if some improvement is done and then, necessary permission would be required under the law.
Page 70 of 113C/SCA/12502/2010 JUDGMENT 8.3 In light of above facts, when there is words against words and findings against findings, he referred page 200, which is the part of the impugned order and submitted that GRT has specifically observed that when there is no clear evidence, the matter requires to be remanded and accordingly, it is rightly remanded so as to decide all the issues raised by the petitioner. At this stage, he referred para 5D, 5F of the petition (at page 19) and submitted that it is the case of the petitioner itself that extract of Village Form No. 7/12 and the revenue record are not the conclusive proof as to whether the land is Agricultural Land or the Khar Land. He submitted that when the issue as to whether the land is Khar Land or not is yet to be decided, nothing precludes the concerned authority to inquire into the matter.
8.4 Learned advocate Mr. Thakkar, then invited attention of the Court to the Written Submissions by the petitioner before the GRT (starts from page 188, relevant is at page 191) and submitted that it is clear that if efforts are made, the land can be cultivable and it is admitted by the petitioner itself then let the inquiry be conducted in the matter.
8.5 On the aspect of maintainability of the present petition, he referred and relied upon a decision rendered in the case of Nadiad Tal Kharid Vechan Sangh Ltd. Vs. State of Gujarat and Another, reported in 1997 (2) GCD 314 (Guj) and submitted that in the case on hand also, the GRT has directed to inquire certain aspects and remanding the matter, which do not cause any difficulty to the petitioner. He then referred a decision rendered in the case of Prem Jeet Singh Gujral Vs. Debt Recovery Tribunal and Others, reported in AIR 2005 Allahabad 351 on this aspect.
Page 71 of 113C/SCA/12502/2010 JUDGMENT 8.6 The learned advocate for the respondent No. 6 then referred the order passed by this Court dated 24.09.2010, while admitting the present petition. He submitted that the petitioner was directed to file the undertaking and subject to that, status quo was granted by this Court. He accordingly, by referring the documents at page 942, 943 submitted that certain mortgages have been made which without the permission of the Court and it is against the order passed by this Court and only on that ground, present petition is required to be dismissed. He then referred page 955 which is the Indenture of Mortgage for Creation of Additional Security, more particularly, the details in Clause IV at page 957 r/w. Schedule 1 at page 979 of which, date is important, which is after the order of admission of the petition by this Court. He then referred item No. 6 of the said Schedule 1 at page 980 in which, facility amount is shown as Rs.160 crores. Thus, in short, in the submission of the learned advocate Mr. Thakkar, the land has been mortgage subsequent to the order passed by this Court in clandestine manner. So, the conduct of the petitioner speaks a volume. He then referred the revenue record (Village Form No. 7, at page 986) and submitted that the above transaction is not reflected in the revenue records. He accordingly, submits that a party, which has disobeyed the order of the Court of law and did above exercise in clandestine manner, is not entitled to any relief at the hands of this Court.
8.7 On the aspect as to whether such a relief can be granted or not, he relied upon a decision rendered in the case of DLF Housing Construction (P) Ltd. Vs. Delhi Municipal Corporation and Others, reported in AIR 1976 SC 386, more particularly, para 18 and Page 72 of 113 C/SCA/12502/2010 JUDGMENT submitted that seeking preempt the issues which are yet to be decided by the competent authority at this stage may cause serious injustice and accordingly, the order of remand may not be interfered with. He also relied upon a decision rendered in SCA 11238 of 1994 dated 01.02.2007, Coram: Hon'ble Mr. Justice RS Garg. Making above submissions, he requested to dismiss the present petition.
9. In rejoinder to the above submissions made by the respondents, the learned advocate for the petitioner submitted that the respondent No. 6 has no locus in the petition itself. It is submitted that a detailed affidavit is filed regarding this aspect. The learned advocate for the petitioner referred page 323 (which is the CA for impleadment as part respondent in the present petition by respondent Nos. 6 to 8) (affidavit starts at page 315), which is the additional affidavit filed by the petitioner dated 01.11.2017. He submitted that after present petition was filed, suits filed by the respondent Nos. 6 to 8 was dismissed. He referred the contentions raised on which the respondent No. 6 claimed his locus in the present petition, which were accepted by this Court and hence, this Court may not go beyond that. He submitted that the pleading says contrary to their contentions. He submitted that according to this respondent/s only, the Ceiling Act would not be applied; they were the owner of entire survey number; during the pendency of the petition, suit has been dismissed. He referred the order of impleadment at page 331, relevant at page 336 para 7 and submitted that this Court had considered certain broad aspects and allowed the civil application. He then referred page 339, which is the order of this Court. He then referred the application preferred by the petitioner under O.7 R.11 Page 73 of 113 C/SCA/12502/2010 JUDGMENT CPC in the suit preferred by the respondent. He then referred page 375, para 11.3 (order of DB confirmed by the Hon'ble Supreme Court) and submitted that impleadment was sought for with some ill- intention and with a view to get some extraneous consideration. On the issue of locus, he referred page 377 and submitted that after the order of impleadment, the suit is decided and hence, the issue of locus of respondent Nos. 6 to 8 is important. In his submission, they have no locus at all in view of subsequent development.
9.1 In counter to the above, learned advocate Mr. Thakkar submitted that as soon as the respondent No. 6 is the party respondent, he is entitled to address the Court.
10. So far as respondent No. 9 is concerned, I have heard Mr. MTM Hakim. At the outset, he submitted that the respondent No. 9 supports the petitioner so far as its contention that the Ceiling Act is not applicable to the land in question. However, he submitted that the only anxiety of the respondent No. 9 that suits for right, title and interest is going on between the respondent No. 9 and the petitioner. He referred the judgment and order passed by this Court in Special Civil Application 8848 of 2002 and allied matters dated 08.08.2007 (relevant at page 126, 145, 147) and submitted that the issue of ownership is kept open and the petition was decided only qua revenue entries etc. He submitted that two suits have been filed being Civil Suit Nos. 388/2006 (by respondent No. 9) and 143/2007 (by petitioner), which are pending. He further submitted that application Ex. 5 was decided in favour of the petitioner against which, two Appeal from Orders were preferred. He referred the common Page 74 of 113 C/SCA/12502/2010 JUDGMENT judgment and order dated 12.03.2008 passed in Appeal from Order No. 375 of 2007 with Appeal from Order No. 86 of 2007 with Civil Application therein (at page 859 onwards). Drawing attention to the relevant portion, para 17 onwards (starts from page 880) and submitted that the order passed below Ex. 5 in favour of the petitioner came to be set aside and the status quo was granted. He requested that observations may not be made qua the right and title of the parties. So far as application of Ceiling Act is concerned, he reiterated that the respondent No. 9 supports the petitioner.
11. The learned advocate for the petitioner, in furtherance of his submissions, referred the prayers sought for in the present petition and submitted that it is not that the petitioner prays for such a declaratory relief as a Court of first instance. Prayer '14[AA]' is an addition but so far as prayer '14[BB]' is concerned, it is replacement of prayer 'B'. The petitioner prays to uphold the order of the Mamlatdar & ALT, which is in favour of the petitioner. He, at the outset, contended that the petitioner has no relevance with the transactions with its predecessors-in-title in the land in question. He only connected with as to whether the provisions of Ceiling Act are applicable to the land in question or not and in his submission, they do not apply. He submitted that the document of 1997 etc. since have some bearing with the Ceiling Act, they are relied and not otherwise.
11.1 He further submitted that there are certain undisputed facts viz. i) subject land is admittedly 'Khar no Kharabo' and it is nobody's case that it is bagayat or something else. He again referred Kami Jasti Patrak at Annexure 'V' at page 242 and invited attention to the Page 75 of 113 C/SCA/12502/2010 JUDGMENT column No. 4 namely Type of Land, which shown as 'Khar no Kharabo' against the subject land i.e. survey No. 506, which is marked as 'B-I' type of land and submitted that thus, as per the revenue record, the land is 'Khar no Kharabo'. He further submitted that the category of land is 'B-I', which is 'Uncultivable Khar no Kharabo'. He also drew attention of the Court to the Manual of Revenue Account maintained by the Government land, where 'B-I' is marked as 'na kheday evi jamin' i.e. uncultivable land and accordingly, the land in question is uncultivable khar kharaba land. He submitted that this land is khar kharaba land because of its geographical location. It is situated at the place where water of river and Arabian sea merges and hence, it is uncultivable land.
11.2 He then submitted that the petitioner purchased this land from different sellers after following due procedure by way of registered sale deeds and mutation entries have also been confirmed up to the Hon'ble Apex Court and it is an undisputed fact. He submitted that the petition proceeds on certain grounds viz. i) provisions of Ceiling Act are not applicable to the subject land (for the reason that it is uncultivable land. Even, the provisions of the Khar Lands Act are also not applicable to the land in question. Even the provisions of 3(1)(aa) of the Ceiling Act would not apply to the land in question);
ii) without prejudice to the rights and contentions of the petitioner, if the Court comes to the conclusion that the Ceiling Act would apply to the subject land then too, the proceedings initiated are completely vitiated by the doctrine of dictate as they are initiated completely on the dictate of the District Collector and any of the authorities below the Collector could have initiated the proceedings under the law; iii) it Page 76 of 113 C/SCA/12502/2010 JUDGMENT ultimately amounts to colourable and targeted exercise of powers conferred upon an authority, only with a view to harass the present petitioner for the reasons best known to them.
11.3 He submitted that the petitioner is desirous of building a township and envisioned the same in the year 1996 for the august purpose for the common men and people of society besides commercial aspect. He submitted that the then Hon'ble Chief Minister also encouraged to have such a scheme and minutes of meeting with the State delegates substantiates the said fact.
11.4 So far as allegation of the State that land is deliberately distributed amongst 67 persons, the learned advocate for the petitioner submitted that firstly, it is not barred by law; secondly, deliberately the object behind such distribution is not referred by the State; besides, all these 67 persons are family members; further from the beginning since this land is 'Khar no Kharabo', the petitioner needs not to undergo the procedure prescribed under the Ceiling Act. Even for the sake of argument, if the procedure was required to be undergone, then also, the respondent - State has missed the bus and now, after all these years, it cannot say the petitioner to undergo such procedures.
11.5 The learned advocate for the petitioner submitted that whether the respondent - State is justified in remanding the matter after all these years, the answer would be 'No'. He referred the impugned order of the GRT, more particularly, the operative portion at page 202 and submitted that there are certain criteria under Section 38 of the Ceiling Act under which, the powers of revision should be exercised.
Page 77 of 113C/SCA/12502/2010 JUDGMENT He submitted that present is the action beyond the scope and powers under Section 38. He submitted there are specific criteria in the section and one cannot go beyond that criteria. He submitted that a lower authority cannot decide the action of the superior authority as certain hierarchy are prescribed under the law. He submitted that Collector's action can be decided by the GRT but not by the Mamlatdar & ALT, who is an authority inferior to the Collector. He further submitted that page 242 (Kami Kasti Patrak) is the Survey Settlement Document. It is not for the mutation entry purposes or for the fiscal purposes and only shows the classification of the land. In this regard, he referred Section 18 of the Code which is for 'Survey Officers'. He submitted that one of the duties of the Survey Officers is to classify the particular land. The subject land is not assessed for the revenue purpose. He then referred Gujarat Land Revenue Rules, 1972 for the classification of land (Chapter III), more particularly, Rules 7 and 3. As per the Rules, the land has to be identified by the Survey Officers as to the classification of land. He submitted that these Rules are read with Section 112 of the Code. He submitted that aforesaid classification of the land in question has not been changed till today nor the State has come with any such case by producing the relevant evidence. He referred the order of the Mamlatdar & ALT dated 18.09.2000 (starts from page 149) and submitted that the Mamlatdar & ALT has also observed in his order that the land is classified as 'B-I' category land (relevant at page 150). He then referred the observations made at page 154, 156 which say that the land is Pot Kharaba and can be cultivable after putting in much efforts. The learned advocate for the petitioner submitted that even in 7/12 extract and other such documents, the land is mentioned to be Page 78 of 113 C/SCA/12502/2010 JUDGMENT the 'Khar no Kharabo'.
11.6 The learned advocate for the petitioner then referred para 3(a) to 3(h) of the petition (at page 4 onwards) which are with regard to how the predecessors-in-title of the petitioner got the land. He submitted that none of the pleadings have been answered by the respondent - State in any of the replies and whatever the reply has been filed is de horse the pleadings. The learned advocate for the petitioner then referred para 8 onwards (at page 23 to 26), which are the pleadings and details with regard to the lands which fall under the Khar Lands Act and do not fall under the same. He contended on the strength of the submissions that who is the authority to undertake this exercise of classification and can there be multiple authority under different statutes to undertake such exercise. In his submission, there should be only one authority for such purpose.
11.7 The learned advocate for the petitioner invited attention of the Court to the additional affidavit filed on behalf of the petitioner (starts from page 203) so as to indicate that the petition is dated 24.09.2010 and on 11.08.2014 this additional affidavit is filed by the petitioner in support of its petition and till that date i.e. 11.08.2014, no reply was filed by the State Government. He referred Clause 3(B) on page 210 onwards and submitted that since 1967, Durasti Patrak has been continued unchanged and against which, nothing has been responded by the State authority or other respondents.
11.8 On the aspect of expanding the scope of petition by way of amendment, the learned advocate for the petitioner submitted that the Page 79 of 113 C/SCA/12502/2010 JUDGMENT amendment was sought for by way of filing Civil Application being No. 8988 of 2014 and Civil Application No. 4920 of 2014. He referred the order passed in Civil Application No. 8988 of 2014 and submitted that the State Government had opposed the said application meaning thereby, there was resistance and response at the hands of the State, which were turned down by the Co-ordinate Bench of this Court. That order is till date not challenged anywhere by the respondent - State. Even, thereafter, in reply, no such contention has been taken by the respondent - State. Even, the amendments are not replied by the respondent - State in their replies.
11.9 The learned advocate for the petitioner invited attention of the Court to the first reply of the respondent - State and then additional affidavit-in-reply filed by the State (at page 294), which is filed on 11.04.2016 i.e. almost after two years of the previous reply and 06 years of filing of the petition, that too after amended petition and producing additional documents and submitted that most of the contentions are repetition of earlier reply. He then drew attention to the contents in para 5 (at page 298) onwards of the said affidavit and submitted that it nowhere comes that the petitioner has purchased the land from the farmers and it is for the purpose of farming. He emphasized on word 'tenure' mentioned in the affidavit para 7 (at page 302) and then took the Court to page 307 of the affidavit. He submitted that 'Khar Lands Act in no case can be applied to the land in question. He also submitted that the word 'Khar Land' is used loosely in the proceedings instead of 'Khar no Kharabo' and it may be that due to such, the authorities have, reckoning the land as 'Khar Land', proceeded accordingly. He submitted that 'Khar Land' and Page 80 of 113 C/SCA/12502/2010 JUDGMENT 'Khar no Kharabo' both are different and the land in question is 'Khar no Kharabo'. From these two replies it is revealed that the Government is not disputing the documents produced on record. He submitted that even prior to the repealation of the Gujarat Khar Lands Act, no notice was issued, either the predecessors-in-title of the petitioner or to the petitioner by the respondent - State authorities. Now, since the Khar Lands Act has been repealed since 2000, even, if the petitioner wants to have exemption reclamation, the petitioner cannot, as the Act itself has been repealed.
11.10 He then invited attention of the Court to the third affidavit-in-reply filed by the respondent - State dated 04.12.2017 (starts from page
378) i.e. after about 07 years of filing of the petition. He submitted that for the first time, by this reply, the maintainability of the petition is questioned by the State. He took this Court to the contents of the said affidavit-in-reply at page 382 and submitted that there is repetition as to the 'Khar Land' and notification to be issued by the concerned competent authority etc. He submitted that the issue of survey settlement has been well taken in the petition, which is not replied by the respondent - State. In this regard he invited attention of the Court to the contents of the additional affidavit filed by the petitioner, more particularly, at page 210, 211.
11.11 He then invited attention of the Court to last affidavit-in-reply filed by the respondent - State at page 1005, which is dated 11.03.2018 and submitted that this affidavit-in-reply does not talk about the merits of the petition at all because it only narrates as to how the land in question was transferred from one to another. The issue in the Page 81 of 113 C/SCA/12502/2010 JUDGMENT petition is as to whether the Ceiling Act applies to the land in question or not and whether, the GRT is right in remanding the matter on certain issues and the petition is not concerned with the title and other aspects of the subject land. He submitted that time and again it is argued that on Rs.3/- stamp paper, sale deeds were prepared, however, it is not being seen to the Court that the petitioner has paid the requisite stamp duty with penalty and interest in the year 2007 so as to save the actual cause of the petitioner.
11.12 On the aspect that the land is not notified under the Khar Lands Act, he invited attention of the Court to page 1049, which is the Village Form No. 6 showing mutation entry which is meant for fiscal purpose. He submitted that the 'Durasti Patrak' is the basic document in the revenue documents (which is at page 242), which suggests the land in question as 'B-I' type of land, means 'uncultivable land' and accordingly, it is not assessed for revenue purpose.
11.13 The learned advocate for the petitioner, on the aspect of Gujarat Khar Lands Act, 1963, invited attention of the Court to Section 2(d) which defines 'Khar Land', which says that a land which has potentiality to be developed as agriculture land. He then referred Section 3, which prescribed for Khar Land Board. He also referred Section 9, the duties of the Board and Section 10, the powers of the Board in implementing the Scheme. He then referred Gujarat Government Notification of 07.06.2000 by which, the Khar Lands Act came to be repealed. He submitted that thus, when the Act itself was repealed on the date on which it sought to be made applicable (Deputy Collector's order is dated 07.07.2003), it does not affect the cause of the Page 82 of 113 C/SCA/12502/2010 JUDGMENT petitioner. He submitted that even the saved clauses do not affect the case of the petitioner. He submitted that the process of applicability should be put first in point of time, whereas, the respondent - State is running reverse. He submitted that the applicability of the Ceiling Act is required to be decided first and then, the applicability of Khar Lands Act etc. 11.14 On the aspect that as to whether the Mamlatdar & ALT has recorded anything qua the Durasti Patrak etc., he invited attention of the Court to the order of the Mamlatdar & ALT dated 18.09.2000 (starts from page 149) and submitted that the same is taken note of by the Mamlatdar & ALT. He then invited attention of the Court to the observations made in the said order at page 158 and submitted that there are clear findings that the land is 'Khar Land'; no agricultural operations were being done; no crop has been laid anywhere; in the gram record, it is mentioned to be the 'Pot Kharaba' land and only after much reformation, the land can be cultivable. He then invited attention of the Court to the order passed by the Collector, Surat dated 05.11.1997 and submitted that the Mamlatdar & ALT has relied upon this order and has made above observations. He submitted that it is because, all the evidence was produced earlier before the Collector in the matter of mutation entries. He submitted that there are concurrent findings by the Collector, Deputy Collector and the Mamlatdar & ALT that the land is 'Khar Land' and not the 'Agricultural Land'.
11.15 He then referred the order of the SSRD dated 13.03.2002, more particularly, the observations at page 102 onwards (operative part at page 104), which is against the petitioner. He submitted that all these Page 83 of 113 C/SCA/12502/2010 JUDGMENT documents were shown to the Collector, Surat at the relevant point of time in relevant proceedings and the then Collector comes to the conclusion that the land is not agricultural land whereas, next Collector comes to the conclusion that it is agricultural land and thus, there is disconnect which is required to be cured.
11.16 In reply to the query raised by the Court as to whether the petitioner has purchased the land in questioned as NA Land, the learned advocate for the petitioner invited attention of the Court to one of the sale deeds at page 1028, more particularly, the Schedule of the land at page 1039 and submitted that it is clear that the land in question is the 'Khar Land', however, there is no NA permission etc. on record but the fact remains that the land is 'Khar Land' and the concerned authorities were aware of the fact. Moreover, he invited attention of the Court to the Minutes of the Meeting held on 11.12.1997 of the Gujarat Infrastructure Development Board at page 262, so as to clarify the intention of the petitioner since then was clear, to construct the township only. He emphasized on contents of the said minutes at page 267 onwards which consists the discussion and the decision on the point about constructing the township.
11.17 The learned advocate for the petitioner then referred to relevant provisions of the Ceiling Act as regards undergoing certain procedures as to exemption certificate. He referred Sections 10, 11 etc. and submitted that none of these provisions prescribe for to decide and check as to whether the land in question is 'Khar Land' or not. He submitted that the authorities are to function within the four corners of law and not beyond that, which is done by the impugned Page 84 of 113 C/SCA/12502/2010 JUDGMENT order. In light of the said submission, he reiterated the narration in operative part of the impugned order at page 202 and submitted that the Tribunal ought not to have passed such an order. In support of his submission, he invited attention of the Court to Section 38 of the Ceiling Act, which reads as under:
"38. Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957, an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only--:
(a) that the order of the Collector was contarary to law;
(b) that the Collector failed to determine some material issue of law;
or
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Gujarat Revenue Tribunal shall follow the procedure which has been prescribed by rules and regulations made under the Bombay Revenue Tribunal Act, 1957."
11.18 Referring Section 38, he submitted that beyond what is contemplated in the body of Section 38, no orders can be passed and thus, the Tribunal has overreached its powers. He submitted that the authority passing such an order in form of dictation by certain directions, in revision, could itself have decided such things, but it is not the case.
11.19 The learned advocate for the petitioner again invited attention of the Court to the definition of 'Land' provided Section 2(17) of the Ceiling Act and submitted that legislature has purposefully not included the Page 85 of 113 C/SCA/12502/2010 JUDGMENT lands like 'Khar no Kharabo', which is the type of the subject land. Thus, the land in question being 'Khar no Kharabo', not amenable to the Ceiling Act. He submitted that the land in question is not cultivable.
11.20 The learned advocate for the petitioner then again referred the decision rendered in the case of Raja Benoy Kumar Sahas Roy (supra), more particularly, para 89 onwards and submitted that applicability of this decision was assailed by the learned Additional Advocate General as it is given in a tax matter. However, in the submission of the learned advocate for the petitioner this decision is very much applicable in view of aforesaid para 89 onwards (para 95 conclusion) of the same. He submitted that if basic concept attached to an agricultural land is absent then no other aspect remains to be considered. He then referred and relied another decision rendered in the case of Mohammed Basheer, K. P. Vs. Deputy General Manager and Another, reported in 2010 (2) KLJ 225, more particularly, para 15 and 16 with respect to agricultural land.
11.21 Apart from above, he submitted that there is no any evidence and/or material produced by the State Government with regard to the land in question is the cultivable land. Therefore, in absence of any proof to that effect, adverse inference as to the land is uncultivable is required to be drawn. In this regard, he referred and relied a decision rendered in the case of State of Gujarat Vs. Ibrahim Akbarali, reported in AIR 1974 Gujarat 54, more particularly, para 35 to 37.
11.22 On the aspect of Report of Navsari University, he submitted that it Page 86 of 113 C/SCA/12502/2010 JUDGMENT may be at the instance of anybody, but the fact remains that it opines that the land in question is uncultivable and the Government has not denied its contents. In none of the replies, the respondent - State has pleaded regarding the said Report.
11.23 The learned advocate for the petitioner submitted that under Section 3(1)(a)[aa] of the Ceiling Act, the land which is allotted on lease, is to be reckoned and not the land like the present one. He submitted that the entire basic aspect of nature of the land in question is not considered by the respondent - State.
11.24 On the aspect of dictate, he submitted that the respondent - State has tried to justify it by saying that they are the directions and not the dictate, which is not correct. In this regard, he drew attention of the Court to Sections 37 and 39 of the Ceiling Act and submitted that these sections presupposes that inquiry has been conducted by the Mamlatdar & ALT. He submitted that powers are limited and it is in case any irregularity found on the face of it, the said powers can be utilized. He also invited attention of the Court to the order dated 18.09.2000 of the Mamlatdar & ALT (starts from page 149, Annexure 'F') and submitted that it is not that the Mamlatdar & ALT has suo motu initiated the proceedings but it is under the direction amounting to dictate, he has initiated such proceedings. He submitted that if such a letter dated 24.08.1999 of the Collector would not have been there, the Mamlatdar & ALT would not have initiated the proceedings. He then took the Court to the order dated 07.07.2003, passed by the Deputy Collector, Choryasi Prant, Surat (starts from page 171) and submitted that it was predetermined action on the part Page 87 of 113 C/SCA/12502/2010 JUDGMENT of the respondent No. 3. He also invited attention of the Court to letter of Collector, Surat dated 22.01.2001 (at page 202-G). He then invited attention of the Court to the impugned order of the GRT (starts from page 196) and submitted that instead of remanding the matter, GRT itself could have decided the matter. He also invited attention of the Court to the letter of Resident Deputy Collector, Surat dated 28.04.2003 written to the Deputy Collector, Choryasi Prant, Surat (at page 202-I) reminding him of the matter and to expedite the matter. He submitted that the time when the proceedings have been initiated against the petitioner is also an important aspect. He submitted that the petitioner had purchased the land in 1985, in 1997, meeting with Gujarat Infrastructure Development Board was held, Government was very much in know of the intention of the petitioner, and lastly, notice was issued and thus, the question of delay on the part of the respondent - State becomes important. Such delay itself is fatal and it is beyond reasonable period i.e. almost after a period of 15 years. In this regard, he referred and relied upon a decision rendered in the case of Valjibhai Jagjivanbhai Vs. State of Gujarat, reported in 2005 (3) GLR 1852, more particularly, para 13, 15 and 16 and submitted that in the case on hand, after 15 years, proceedings sought to be initiated which is much more beyond the reasonable time prescribed under the law.
11.25 On the aspect of maintainability of the petition raised by the respondents, he submitted that it is argued that company cannot claim fundamental rights and also that there is no authorization by the company for signing the petition and/or affidavit, he referred and relied upon a decision rendered in the case of Delhi Cloth & General Page 88 of 113 C/SCA/12502/2010 JUDGMENT Mills Co. Ltd. Vs. Union of India and others, reported in (1983) 4 SCC 166, more particularly, para 12 of the same and submitted that for the reason that no other efficacious remedy is available and other as mentioned in above decision, this petition is maintainable.
11.26 The learned senior advocate for the petitioner submitted that the core issue which is required to be considered is that whether the land in question is an agricultural land or whether it is cultivable, if it is no so, then whole issue collapse. Even, if the land is improved and made cultivable, then the protection is given under the Ceiling Act to ask for the exemption certificate. Besides, it is not obligatory to make it cultivable. Giving reference to the definition of 'Land', as provided under section 2(17) of the Ceiling Act, he submitted that the land in question is 'Khar Land', which can be substantiated from the Durasti Patrak (at page 242), which suggests the land as 'B-I' type of land and hence, there is no question of application of the Ceiling Act.
11.27 Again, on the aspect of dictate of the superior authority, he, by reiterating the earlier submissions made by him, further submitted that the Collector concerned is party to the proceedings and he has not filed any reply that it was not the dictate but was a request made to the concerned authority to consider such issues as directed in the impugned order.
11.28 Further, on the point of colourable exercise of the powers, he submitted that earlier the matter had gone upto the Hon'ble Apex Court, land was identified to be the 'Khar Land' which can be substantiated from the orders passed by the Hon'ble Apex Court in Page 89 of 113 C/SCA/12502/2010 JUDGMENT which question of law was framed (order at page 221 of the petition). He submitted that the matter went upto the Hon'ble Apex Court twice and on first occasion, it was dismissed on delay and on merits also and second time, it was dismissed only on the ground of delay, thus, in both rounds of litigation before the Hon'ble Apex Court, the orders are in favour of the present petitioner.
11.29 The learned senior advocate for the petitioner, on the aspect of remand of the matter by the GRT to the Mamlatdar & ALT, submitted that generally remand orders are not interfered but then, it is in the matters where there is clear breach of natural justice or either party could not represent its case, but in this case, nothing sort of this is there and therefore, the order of remand could not have passed and hence, he reiterated that the remand in the revenue proceedings for the sake of remand, is highly deprecated. He submitted that on the contrary, the GRT ought to have decided such issues itself without remanding the matter. He submitted that the GRT has also ordered to decide the classification of the land in question in its order besides the issues of delay etc. 11.30 On the aspect of mortgage of the land in question, he submitted that as on today, the land is free from all encumbrance, no construction is put up.
12. I have heard the learned advocates for the respective parties at length and also gone through the material placed on record vis-a-vis the decisions relied by the learned advocates for the respective parties. The prayer made by the petitioner in this petition is to declare that the Page 90 of 113 C/SCA/12502/2010 JUDGMENT provisions of the Ceiling Act would not apply to the land in question. Before dealing with the main issue, this Court deems it proper to deal with other aspect of the matter.
13. The State, by way Civil Application No. 16368 of 2017, has questioned the maintainability of this petition itself mainly on the ground that the petitioner being a company, though a person under the law, but not being a living entity, cannot seek relief as to infringement of fundamental rights under Article 19 of the Constitution of India and the fundamental rights are meant for the citizens, the living persons. It is also submitted that the petitioner company ought to have joined a living person designated for the purpose. It is contended that a company cannot seek breach of fundamental rights as it is not a living creature. It is submitted that even under the provisions of Rule 174 of the Gujarat High Court Rules, 1993, it is obligatory where a person signs the petition in a capacity other than his individual capacity, such as public officer, guardian of a minor, partner of a firm, power of attorney holder, Director, Secretary or Principal Officer of a Company or Corporation etc., he shall indicate the capacity in which the signs unless it has been signed on behalf of the petitioner by his advocate. Accordingly, the present petition appears to be against the tenor of Rule 174 of the Gujarat High Court Rules. The learned Additional Advocate General for the respondent - State has referred and relied upon the decision in the case of State Trading Corporation of India Ltd. (supra), rendered by 09 Hon'ble Judges of the Hon'ble Apex Court in support of his case. Whereas, the learned senior advocate for the petitioner has submitted that for the reason that no other efficacious remedy is Page 91 of 113 C/SCA/12502/2010 JUDGMENT available and other as mentioned in above decision, this petition is maintainable. Moreover, the State could have raised such an issue at the preliminary stage, while admitting the petition which was not done at the relevant time and now, after lapse of these many years, without there being any explanation much less a satisfactory explanation, such objection is not maintainable. Besides, drawing attention of the Court to the Resolutions of 2006, 2014 and 2017 passed by the Board of Directors of the petitioner company, copies of which are produced on record in Civil Application, the learned senior advocate for the petitioner submitted that the petitioner company, by the said Resolutions, has specifically authorized the persons mentioned in the same to file, suits, petitions and/or other legal proceedings and accordingly, such an issue raised by the State is not tenable under the law.
13.1 It would not be out of place to mention here that the petition is filed in the year 2010, which was admitted by the Co-ordinate Bench of this Court on 24.09.2010, whereas, the application challenging the maintainability of the petition is filed only in the year 2017 i.e. after lapse of more than 06 years. The respondent State has failed to explain such a delay in raising the preliminary objection. In the opinion of this Court, the State could have raised such an issue at the initial stage. Even, if the case of the respondent - State is considered, indisputably the petition is filed by the company and in the submission of the learned Additional Advocate General, there should be a be living co-petitioner. At this juncture, it would be preferable to refer the documents produced by the petitioner at Annexures 'A' and 'B' to the Civil Application, which are the Resolutions dated Page 92 of 113 C/SCA/12502/2010 JUDGMENT 22.08.2006, 15.07.2014 and 25.07.2017 passed by the Board of Directors of the petitioner - company resolving to authorize the persons referred in the same to file suits, petitions and/or any other legal proceedings, which consists the name of one Mr. Ashwin Mehta, who is the deponent of the present petition. Even, from the material on record it transpires that the petition is affirmed by said Shri Ashwin Mehta in the capacity of Director. The seal is also affixed indicating him to be the authorized signatory. Thus, there appears no apparent breach of Rule 174 of the High Court Rules. Even otherwise, in further opinion of the Court, the cause of the petitioner cannot go away merely on the ground of such technicalities only because no designated living person is joined in the petition. Besides, such is an error which can be rectified. Further, the learned senior advocate for the petitioner has also requested that the Court may consider the matter on the touchstone of Articles 14, 226, 227 and 300(A) of the Constitution of India and may ignore the contentions of the petitioner on Article 19.
13.2 At this juncture, it would be beneficial to have glance at the observations made by the Hon'ble Apex Court in the decision rendered in the case of Delhi Cloth & General Mills Co. Ltd. (supra), relied by the petitioner, more particularly, the observations in para 12 of the same, in which, the Hon'ble Apex Court has also considered the decision rendered in State Trading Corporation of India Ltd. (supra) which is relied by the learned Additional Advocate General, which is extracted hereunder:
"12. "The learned Attorney General raised a preliminary objection to the maintainability of the writ petitions filed in this Court under Art. 32 and those filed in the High Court Page 93 of 113 C/SCA/12502/2010 JUDGMENT under Art. 226 of the Constitution. The submission was founded on the ground that an incorporated company being not a citizen for the purposes of Art. 19 and therefore it cannot complain of the denial or deprivation of fundamental freedom guaranteed by Art. 19(1)(g) of the Constitution and the situation is not improved by joining either a share- holder or a Director as co-petitioner. It was said that the company has a juristic personality independent of the Director or a shareholder and the business or trade carried on by the company is not that of either the shareholder or the Director. As the corrolary, it was urged that even if the impugned Rule 3A imposes an unreasonable restriction on the fundamental freedom to carry on trade or business, this Court cannot entertain a petition under Art. 32 nor the High Court can entertain one under Art. 226 of the Constitution. Frankly speaking, this is an oft repeated contention whenever the F petitioner is an incorporated company but the law in this behalf is in a nebulous state and therefore, it is not possible to throw out the petition at the threshold. More so because a petition under Art. 226 of the Constitution can be filed by the company for any other purpose and also the petitioners complain of violation of Art. 14 of the Constitution. The reasons for stating that the law is in a nebulous state may briefly be mentioned. In State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam(1) and Tata Engineering and Locomotive Co. v. State of Bihar, this Court held that a Corporation was not a citizen within the comprehension of Art. 19 and therefore, could not complain of denial of fundamental freedom guaranteed by Art. 19 to a citizen of this country. These two decisions are an authority for the proposition that an incorporated company being not a citizen could not complain of violation of fundamental freedom guaranteed to citizens under Art. 19. But a different note was struck in R.C. Cooper v. Union of India,(1) when it was held that 'a measure executive or legislative may impair the rights of the company alone, and not of its share-holders; it may impair the rights of the shareholders as well as of the company. It was further held that jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired. If that action impairs the rights of the company as well. In that case, the Court entertained the petition under Art. 32 of the Constitution Page 94 of 113 C/SCA/12502/2010 JUDGMENT at the instance of a Director and the shareholder of a company and granted relief. The two conflicting trends in this behalf were noticed by this Court in Bennett Coleman & Co. & Ors v. Union of India & Ors.(2) where after review of the afore- mentioned decisions and several others, it was held as under:
(SCC p. 806, para 22) "As a result of the Bank Nationalisation case (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19. That invidiual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalization case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19 (1)(a) are projected and manifested by the the newspapers owned and controlled by the shareholders through the medium of the corporation."
Our attention was, however, invited to two later decisions: (1) The Divisional Forest officer v Bishwanath Tea Co. Ltd.(1) and (2) Western Coalfields Ltd. v. Special Area Development Authority, Korba and another(2). But we can draw no assistance from the aforementioned two cases because in the first case the question this Court considered was whether a petition merely for refund of a tax paid under a mistaken impression at the instance of a company can be entertained under Art. 226 and the question in the second case was whether the properties of a Govt. company are exempt from levy of tax imposed by state or its delegate under Art. 285(1). The contention raised in these two cases does not touch the question under examination. Thus apart from the law being in a nebulous state, the trend is in the direction of holding that in the matter of fundamental freedoms guaranteed by Art. 19, the rights of a shareholder and the company which the Page 95 of 113 C/SCA/12502/2010 JUDGMENT shareholders have formed are rather coextensive and the denial to one of the fundamental freedom would be denial to the other. It is time to put an end to this controversy but in the present state of law we are of the opinion that the petitions should not be thrown out at the threshold. We reach this conclusion for the additional reasons that apart from the complaint of denial of fundamental right to carry on trade or business, numerous other contentions have been raised which the High Court had to examine in a petition under Art. 226. And there is a grievance of denial of ' equality before law as guaranteed by Art. 14. We accordingly over-rule the preliminary objection and proceed to examine the contentions on merits."
(emphasis supplied) 13.3 Thus, in view of the aforesaid discussion and the aforesaid observations made by the Hon'ble Apex Court, in the considered opinion of the Court the aforesaid contention raised on behalf of the respondent State questioning the maintainability of the petition, does not find any favour and therefore, the Court is inclined to examine the substantive prayers made in the petition, more particularly, with a view to save the abuse of process of law and Court and in the interest of justice.
14. The substantive prayers which are sought in the present petition, they are two fold: i) to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction under Article 226 of the Constitution of India holding and declaring that the provisions of Gujarat Agricultural Land Ceiling Act, 1960 has no application to the subject land and accordingly, the respondent authorities may be precluded from taking any action under the Gujarat Agricultural Land Ceiling Act, 1960; and ii) to issue a writ of certiorari or writ in the nature of certiorari or any other writ, order or direction for quashing and setting aside the order of the Page 96 of 113 C/SCA/12502/2010 JUDGMENT respondent No. 1 dated 11th May 2010 passed in Revision Case No. TEN BS 104 of 2003 and further to uphold the order dated 18 th September 2000 passed by the Additional Mamlatdar and Krishi Panch (Ceiling) in Ceiling Case No. 1 of 2000.
14.1 The submissions of the learned senior advocate for the petitioner can be summarized as follow on the aspect:
i) the land in question is not an agricultural land. The Ceiling Act only applies to the lands which are agricultural lands. The land in question is the 'Khar no Kharabo' and hence, not amenable to the provisions of the Ceiling Act;
ii) the petitioner company has purchased the land in question by way of registered sale deeds in the years between 1985 and 1995 for the purpose of development of township in the said land;
iii) the predecessors-in-title of the land in question had not purchased the said land as agriculturists from their erstwhile holders.
They were businessmen and doctor etc. and stayed at different distant places;
iv) the land in question has never been assessed for revenue purpose;
v) the respondent - State has not produced any documentary evidence so as to prove that the said land is an agricultural land and/or was ever assessed for revenue purpose;
vi) the concerned respondent - authorities have in the proceedings before them, have observed time and again that the land is 'Khar Page 97 of 113 C/SCA/12502/2010 JUDGMENT Land', more particularly, the the Collector in his order dated 05.11.1997 and the Mamlatdar & ALT in order dated 18.09.2000;
vii) the Durasti Patrak, which is meant for classification of the land, shows the land in question falls under 'B-I' category, meaning thereby, it is the 'Khar Land', and thus, Ceiling Act is not applicable to it. Also as per the Manual of Revenue Account maintained by the Government land such land is termed as 'Khar Land';
viii) the Report of Navsari Agricultural University also suggests that the land is a 'Khar Land' and is not cultivable;
ix) even the minutes of the meeting with Gujarat Infrastructure Development Board held in 11.12.1997 clarifies the intention of the petitioner to construct the township only and the Government is well aware of the same since then;
x) definition of land given in the Ceiling Act in Section 2(17) does not include the 'Khar Land'.
xi) it was under colourable exercise of the power, the impugned order has been passed. The GRT itself could have decided such an issue. It is also submitted that such directions given under the impugned order, is a clear dictate and against the scope and jurisdiction vested under Sections 37 and 38 of the Ceiling Act;
xii) several decisions have been relied upon.
14.2 As against this, the learned Additional Advocate General has made Page 98 of 113 C/SCA/12502/2010 JUDGMENT following submissions:
i) the issue is never decided and hence, the concerned authority has committed no error of law in issuing such directions. Only matter qua mutation entries and the ownership has attained finality;
ii) under Section 37 of the Ceiling Act, the authority concerned is empowered to issue such a direction and the action of the concerned authority cannot be treated as dictate and/or colourable exercise of powers;
iii) the Report of Navsari Agricultural University is not acceptable. Besides, it also says that the land in question can be cultivable if improvement is made. The petitioner has not produced any evidence as to the land in question is the 'Khar Land' and not the agricultural land;
iv) with mala fide intention and after due deliberation, the land in question was distributed between 67 persons by the predecessors-in-
title of the petitioner and prior to execution of sale deeds, Arrangement Agreement was made, which is suggestive of mala fide intention on the part of the petitioner;
v) Even if the land is the 'Khar Land', the provisions of Section 3(1)(aa) of the Ceiling Act are required to be followed, which at no point of time, have been followed and the petitioner has not got the Exemption Certificate qua the subject land. Besides, for holding of more than 39 acres of land, the provisions of the Ceiling Act are Page 99 of 113 C/SCA/12502/2010 JUDGMENT required to be followed and the petitioner holds about 1600 acres of land;
vi) several decisions have been relied upon.
14.3 Learned advocate Mr. Thakkar for the respondent No. 6 has also submitted that the provisions of the Ceiling Act applies to the land in question, whereas, learned advocate Mr. Hakim for the respondent No. 9 has supported the petition so far as issue of applicability of Ceiling Act to the land in question is concerned. Ms. Shah has adopted the submissions of the learned Additional Advocate General.
15. To adjudge the issue, firstly, I opt to go through the object of the Ceiling Act, which is extracted hereunder:
"An Act to fix a ceiling on holding agricultural land and to provide for the acquisition and disposal of surplus agricultural lands.
WHEREAS the Bombay Tenancy and Agricultural Lands Act, 1948 imposes a restriction upon holding agricultural land in excess of certain limits in the Bombay area of the State of Gujarat;
AND WHEREAS it is expedient in the public interest to make a uniform provision for the whole of the State of Gujarat in respect of restrictions upon holding agricultural land in excess of certain limits and it is also expedient for so securing the distribution of agricultural land as best to subserve the common good to provide for the acquisition of surplus agricultural land for the allotment thereof to persons who are in need of lands for agriculture (including co-operative farming societies, landless persons, agricultural labourers and small holders) 2[or for the allotment of such surplus agricultural lands the integrity of which is maintained in Page 100 of 113 C/SCA/12502/2010 JUDGMENT compact blocks to a department of Government or to co- operative farming societies or corporations owned or controlled by the State, for ensuring the full and efficient use thereof] and to provide for other consequential and incidental matters hereinafter appearing; It is here by enacted in the Eleventh Year of the Republic of India as follows:-..........."
15.1 Thus, the primary object of enacting the Ceiling Act is to 'fix a ceiling on holding agricultural land and to provide for the acquisition and disposal of surplus agricultural lands'. Thus, for applying the provisions of the Ceiling Act, the land should be an agricultural land and therefore, it is required to be decided as to whether the land in question is agricultural land or not. It is apt to note here that there is nothing on record to show that the land in question is not an agricultural land. The petitioner has mainly relied upon the Durasti Patrak / Kami Jasti Patrak, produced at Annexure 'V' at pg. 242 to the petition, which is stated to be the basic revenue document, more particularly, the column No. 4 of the same, which describes the land as 'Khar No Kharabo' and falls under 'B-I' category of land. It is contended by the petitioner that there was no agricultural tax leviable / assessable in respect of this revenue survey No. 506.
15.2 At this juncture, it is deemed fit and proper to go through the definition of 'Land', prescribed under the Ceiling Act in Section 2(17). For the sake of convenience, it is reproduced again hereunder:
"[(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;Page 101 of 113
C/SCA/12502/2010 JUDGMENT
(ii) in relation to any other period, land which is used or capable of being used for agricultural purposes, and includes-
(a) the sites of farm buildings appurtenant to such land;
(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, the Saurashtra Barkhali Abol- ition Act, 1951 or the Saurashtra Estates Acquisition Act, 1952, as the case may be;
(d) such bid lands as are held by a person who, before the commencement of the Constitution (Twenty-Sixth Amendment) Act, 1971 was a Ruler of an Indian State comprised in the Saurashtra area of the State of Gujarat, as his private property in pursuance of the covenant entered into by the Ruler of such State ;
(e) trees and standing crops on such land;
(f) canals, channels, wells, pipes or reservoirs and other works constructed or maintained on such land for the supply or storage of water for the purpose of agriculture ;
(g) drainage works, embankments, bandharas or any other works appurtenant to such land, or constructed or maintained thereon for the purpose of agriculture, and all structures and permanent fixtures on such land;
Explanation.-In clause (d), the expressions "Ruler" and "Indian State" shall have the same meanings as are assigned to them in clauses (22) and (15) respectively of article 366 of the Constitution and the expression "covenant" shall have reference to the covenant which was referred to in article 291 of the Constitution before the repeal of that article by the Constitution (Twenty-Sixth Amendment) Act, 1971;]"
15.3 It is also apt to refer the details of 'Pot Kharab' furnished by the Public Information Officer, Pot Kharab is of two types, i) uncultivable and ii) cultivable but spared for some other purpose and Page 102 of 113 C/SCA/12502/2010 JUDGMENT hence, excluded from agricultural purpose. It is specified in the said details that prior to 1915, no attempt was made to make such a bifurcation, however, in this book, they are shown separately. However, if the land in question is taken into consideration, no any competent authority has come to a specific conclusion that the land in question is not cultivable. On the contrary, what is opined is, if efforts are made and improvement is done. Even as per the opinion of the expert i.e. the Navsari Agricultural University, which is relied by the petitioner, it is stated therein that the land in question is salty i.e. Khar Land.
15.4 The petitioner has relied upon the documents at Annexure 'M' Colly., more particularly, the document at page 202/Y, which is the information in the form of letter dated 01.04.2009 furnished by the Public Information Officer and Under Secretary, Revenue Department, State of Gujarat under Right to Information Act, which specifies that the Gujarat Agricultural Lands Ceiling Act shall not be applied to the Khar Lands. But then, there is nothing on record to show that the Government has issued any such Notification qua Khar Land and exemption of the land in question. Even, the petitioner has failed to show that the petitioner has ever applied for Exemption Certificate. It is contented by the learned Additional Advocate General that even if the subject land is not amenable to the provisions of the Ceiling Act, then also, there are certain procedures under Section 3(1)(a)(aa) of the Ceiling Act, which are obligatory on the part of the owner and are required to be undergone and Exemption Certificate is required to be got from the concerned authority, which in the case on hand, has not been received by the petitioner.Page 103 of 113
C/SCA/12502/2010 JUDGMENT 15.5 In this regard, the provision of Section 3(1)(a)(aa) of the Ceiling Act is required to be gone through and accordingly, it is extracted hereunder:
"3.(1) [Subject to the provisions of sub-sections (1A) to (1D) (both inclusive), the following lands] shall be exempted from the provisions of this Act, that is to say-
(a) lands belonging to, or held on lease, by Government 18 [* * * * * * * * *];
[(aa) khar lands and tidal lands as defined in the Gujarat Khar Lands Act, 1963 and any other lands which, being in the opinion of the State Government such as need special efforts for their reclamation for the purpose of bringing them under cultivation, are notified in this behalf by the State Government by a notification in the Official Gazette, held on lease from Government for a period not exceeding twenty years;]"
15.6 As per the above provision, khar lands and tidal lands as defined in the Gujarat Khar Lands Act, 1963 and any other lands which, being in the opinion of the State Government such as need special efforts for their reclamation for the purpose of bringing them under cultivation, are notified in this behalf by the State Government by a notification in the Official Gazette, held on lease from Government for a period not exceeding twenty years. The subject land is purchased by the petitioner by way of registered sale deeds. In the case on hand, the subject land is 'Khar no Kharabo' and accordingly, in considered opinion of this Court, it is obligatory on the part of the petitioner to undergo the procedure prescribed in the Ceiling Act.Page 104 of 113
C/SCA/12502/2010 JUDGMENT 15.7 So far as the submissions qua the colourable exercise of powers and dictate on the part of the concerned State authority are concerned, this Court does not want to go deep into it. But, under Section 37 of the Ceiling Act, the revisional powers are vested in the Collector. The Collector can direct the Mamlatdar & ALT to inquire into the facts and initiate appropriate proceedings and asking to initiate proceedings in accordance with law does not necessarily amount to giving direction and and acting under dictation. Besides, the Collector has not asked/directed the Mamlatdar & ALT to pass any specific order. Thus, in this Court is of the view that there is no illegality and/or colourable exercise of powers in passing such order.
15.8 The learned senior advocate for the petitioner has submitted that it is remand for the sake of remand but in the facts and circumstances of the case and as discussed above, the issue in question has never been decided, it cannot be said that it is (an order of) remand for the sake of remand. Besides, the GRT appears to have kept all the issues open including the applicability of the Ceiling Act. It is also argued that the GRT itself could have decided such issues, but, when under the law one authority is vested with certain powers and meant for the same, in the considered opinion of this Court there is no perversity and/or illegality in the same merely because the petitioner has to undergo certain exercise before the concerned authority. In this regard, the learned Additional Advocate General has relied upon several decisions one of which, is in the case of Lallubhai Morarjibhai Patel through His Heirs (supra), more particularly, the Head Notes, which reads as under:Page 105 of 113
C/SCA/12502/2010 JUDGMENT "Constitution of India - Art. 226, 227 - petition challenged judgment and order of Tribunal whereby revision preferred before Tribunal came to be allowed and case is remanded to Mamlatdar and ALT (Ceiling) for properly considering holding of applicant - petitioner - permissibility to exercise extra-ordinary jurisdiction under Art. 226 and 227 - held, in facts and circumstances of the case High Court is not inclined to entertain special extraordinary plenary, equitable writ jurisdiction under Art. 226/227 against impugned order of remand - petition dismissed."
158.1 The learned Additional Advocate General has also relied upon another decision, rendered by the Hon'ble Apex Court in the case of Punjab Roadways Moga through its General Manager (supra), more particularly, para 27, which reads as under:
"Article 226 of the Constitution of India confer extra ordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of fundamental rights or any other purpose, the powers are of course wide and expansive but not to be exercised as an appellant Authority re-appreciating the finding of facts recorded by a Tribunal or an authority exercising quasi judicial functions. Power is highly discretionary and supervisory in nature. Grant of stage carriage permits is primarily a statutory function to be discharged by the RTA exercising powers under Section 72 of the Act and not by the High Court exercising the Constitutional powers under Article 226 or 227 of the Constitution of India. A writ Court seldom interfers with the orders passed by such authorities exercising quasi-judicial functions, unless there is serious procedural illegality or irregularity or they have acted in excess of their jurisdiction. If there is any dispute on the proper implementation of the ratio or inclusion or exclusion of any route or area in the Scheme, the RTA can always examie the same, if it is moved. The direction given by the High Court to the RTA to grant regular permits to the private operators, is therefore, patently illegal."Page 106 of 113
C/SCA/12502/2010 JUDGMENT 15.8.2 Further, decision relied upon by the learned Additional Advocate General is in the case of Employees Provident Fund Organization Vs. Faze Three Limited (supra), more particularly, para 11, which reads as under:
"As such, the so-called e-mail communication is later to the decision of the Tribunal and not during the time when the matter was pending before the Tribunal. Further, even if it is considered for the sake of examination that she requested for time and the said time was not granted by the Tribunal, then also the matter would not end there, more particularly, when on the aspect of breach of principle of natural justice las is further developed to the extent that the prejudice must be satisfactorily demonstrated on account of the breach of principle of natural justice. When, as observed earlier, there were two basic deficiencies in the order passed by the Provident Fund Commissioner under Section 7A; one for not compelling the presence of the labour contractor for the purpose of the identification of the labourer and the another was for not giving express opportunity of cross-examination, and if the discretion is exercised by the Tribunal under such circumstance to remand the matter and when such exercise is not perverse, it cannot be said that any prejudice is caused to the appellant, who is otherwise supposed to act independently as a quasi-judicial authority. Hence, we find that on such ground the order of the Tribunal would not be vulnerable. Apart from the above, the fact remains that this Court in exercise of the powers under Article 226 or 227 of the Constitution may not interfere to the order of the Tribunal unless this Court finds that the discretion has not been properly exercised by the Tribunal or the exercise of discretion is perverse. Further, Court may also decline the entertainment of the complaint for alleged breath of principle of natural justice when Court finds that no prejudice is caused on account of the alleged breach of principle of natural justice."
15.9 Thus, in view of the aforesaid settled position of law if the discretion is exercised by the Tribunal under such circumstance to remand the Page 107 of 113 C/SCA/12502/2010 JUDGMENT matter and when such exercise is not perverse, it cannot be said that any prejudice is caused to the petitioner and on the ground mentioned by the petitioner, it appears that on such ground, the order of the GRT would not be vulnerable. Besides, as observed in the above decision, the fact remains that this Court in exercise of the powers under Article 226 or 227 of the Constitution many not interfere to the order of the Tribunal unless this Court finds that the discretion has not been properly exercised by the Tribunal or the exercise of discretion is perverse. Further, the Court may also decline the entertainment of the complaint for alleged breath of principle of natural justice when Court finds that no prejudice is caused on account of the alleged breach of principle of natural justice. In the case on hand also, if the issues in question, which have remained undecided so far, are decided, no prejudice would cause to either party and accordingly, this Court find no illegality or perversity in the order of remand by the GRT.
15.10 Apart from all this, the entire transaction qua the land in question creates serious doubts, more particularly, for the reason that prior to execution of the sale deeds in favour of the predecessors-in-title of the petitioner viz. Maganbhai Patel and others, in all five persons, qua the land in question, an agreement of arrangement (Declaration Deed) is being executed with 63 (in all 67 persons) on 18.08.1969 on stamp paper of Rs.3/- and the entire chunk of land is distributed in proportion,, maximum about 40 acres, between these 63 (in all 67 persons) persons, who appears to be not related to each other as they hail from different ancestors and families. Thereafter, Sale Deeds came to be effected between October and December 1969 with said Page 108 of 113 C/SCA/12502/2010 JUDGMENT Maganbhai Patel and others, in all five persons, who are the predecessors-in-title of the petitioner. Thus, surprisingly, prior to execution of the sale deeds and prior to they become owners of the land by way of above Sale Deeds, these five persons entered into agreement with 67 original persons in August 1969. The State has also, in affidavit dated 11.03.2018 at page 1005 produced the said deed at Annexure FA1, starting from page 1013 and submitted that the date mentioned in it is 18.08.1969 (reflected at pg. 1020). This agreement was done on a stamp paper of Rs.3/- in 1969 in favour of in all 63 persons who belonged to different places and castes and of different age. It is submitted that it is suggestive of the fact that this is done (ownership of 63 persons) only with a view to avoid the provisions of the Ceiling Act and to avoid the ceiling limit of 39 acres as is fixed in that particular area. The learned Additional Advocate General, by referring the order of GRT dated 08.04.1976, more particularly, the operative part of the same at page 64, has submitted that ownership was declared of 05 persons in the year 1976. Maganbhai and others succeeded before the GRT in 1976 (08.04.1976). Based on this agreement of 1969 and the order of 1976, entry No. 591 dated 05.10.1976 qua Maganbhai and others and then entry no. 594 dated 09.12.1976 qua 67 persons, were mutated in the relevant revenue records indicating that 1603 acres of land is held by 67 persons in the manner in which their shares are alloted. He then referred the provisions of Code in retaliation to the arguments made on behalf of the petitioner that these entries have attained finality up to the Hon'ble Apex Court. So, it is ample clear that they (67 persons) shared the land prior to the Sale Deed with above 05 persons only with a view to escape the provisions of Ceiling Act.
Page 109 of 113C/SCA/12502/2010 JUDGMENT After all this, the petitioner - company comes into picture. The petitioner - company purchases the land in question from Maganbhai Patel and others. Thus, it appears that all these arrangements of executing agreement prior to execution of sale deeds, distribution of a particular chunk of land in favour of all those 67 persons and thereafter, enter into sale deed after 2 to 4 months of the execution of such an agreement, appears to be a well-planned arrangement with a view only to avoid the application of the Ceiling Act.
15.11 The learned senior advocate for the petitioner has relied upon several decisions, however, from perusal of the same same would be of no help to the petitioner in the facts and circumstances of the case.
16. In view of the above discussion, following salient points have been weighed with the Court:
i) the issue in question, has never been decided by any of the authorities and adjudication of the same would cause no prejudice to the petitioner;
ii) as per the definition of 'Pot Kharab' itself, it is of two types viz.
i) cultivable and ii) uncultivable and the from the order dated 05.11.1997 passed by the Collector and the order dated 18.09.2000 passed by the Mamlatdar and ALT it transpires that the land in question can be cultivable if reclamation and improvement is done;
iii) the land in question is not notified and declared as 'Khar Land' Page 110 of 113 C/SCA/12502/2010 JUDGMENT under the provisions of the Khar Lands Act. Even, if the land is Khar Land, for exemption, the Government has to issue the Notification and the contender has to apply for Exemption Certificate with the said Notification, which is apparently not done in the case. No such Notification and/or Exemption Certificate is there on record.
iv) the procedure which is to be undertaken under Section 3(1)(aa) is also not undertaken by the petitioner. Indisputably, the petitioner is holding excess land than the prescribed extant ceiling limit of 39 acres;
v) the GRT has remanded the matter to the competent authority under the law for deciding certain issues, which are never decided and accordingly, it cannot be said to be the colourable exercise of powers;
vi) the petitioner has not challenged the letter dated 24.08.1999 of Collector, Surat rejecting its application for addition 600 acres of land copy of which is forwarded to Mamlatdar & ALT, Choryasi prant with certain instructions if at all the petitioner has any grievance against the said letter;
vii) the information supplied under the RTI Act appears to be in general in nature and applicability of such information should be checked with the laws applicable to a particular case. In other words, legislative provisions cannot be obliterated squarely upon such information;
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viii) the order dated 08.04.1976 indicate that ownership of Maganbhai Patel and others have attained finality and the order dated 05.11.1997 passed by the Collector is qua entry No. 594 only and attainment of finality is in relation to the entry in the revenue record only and not qua the point that the provisions of Ceiling Act are not applied. Thus, the issue in question is never decided by any of the authorities;
ix) entire transaction viz. execution of Declaration Deed prior to execution of sale deed by which, land in question is distributed amongst 67 persons in proportion maximum up to 40 acres, creates doubts and appears to be with a view to avoid the application of Ceiling Act and is a well-planned act;
x) as per the settled legal position, the Court, in exercise of the powers under Article 226 or 227 of the Constitution, may not interfere the order of the Tribunal unless the Court finds that the discretion has not been properly exercised by the Tribunal or the exercise of discretion is perverse. Further, the Court may also decline the entertainment of the complaint for alleged breath of principle of natural justice when Court finds that no prejudice is caused on account of the alleged breach of principle of natural justice. In the case on hand also, no illegality, perversity and/or infirmity found in the impugned order of remand.
17. In the above backdrop, present petition deserves to be dismissed and is accordingly, dismissed. The order dated 11.05.2010 passed by the Page 112 of 113 C/SCA/12502/2010 JUDGMENT Gujarat Revenue Tribunal in Revision Case No. TEN BS 104 of 2003 is hereby confirmed. Rule is discharged. Interim relief shall stand vacated forthwith. In view of the aforesaid discussion, the Civil Application No. 16368 of 2017, filed by the respondent - State, is also dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[ P. P. Bhatt, J. ] hiren Page 113 of 113