Gujarat High Court
Hiraben Wd/O Motibhai Jetha Bhai Mali vs Revaben Wd/O Manaji Chandaji Since ... on 26 November, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/12744/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12744 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowedNo
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
HIRABEN WD/O MOTIBHAI JETHA BHAI MALI....Petitioner(s)
Versus
REVABEN WD/O MANAJI CHANDAJI SINCE DECD. THROUGH LEGAL &
6....Respondent(s)
==========================================================
Appearance:
MR JITENDRA M PATEL, ADVOCATE for the Petitioner(s) No. 1
MS. NISHA THAKORE, A.G.P. for the Respondent(s) No. 6
MR. SHALIN MEHTA, SENIOR COUNSEL with MS VIDHI J BHATT,
ADVOCATE for the Respondent(s) No. 2 , 4 - 5
RULE SERVED for the Respondent(s) No. 6 - 7
UNSERVED-EXPIRED (R) for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 26/11/2015
Page 1 of 22
HC-NIC Page 1 of 22 Created On Fri Nov 27 01:13:40 IST 2015
C/SCA/12744/2008 CAV JUDGMENT
CAV JUDGMENT
1. By the present petition filed under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order dated 13.8.1993 passed by the Gujarat Revenue Tribunal ("the Tribunal") in Revision Application No. 414 of 1989 and the order dated 21.8.2008 passed in review application No. TEN.CA.12/94 and further prayed to confirm the order of the Mamlatdar Deesa dated 30.3.1988 as also the order made by the Deputy Collector, Palanpur in Civil Appeal No.1 of 1988 dated 30.12.1988.
2. It appears that for the lands held by respondent No.1 deceased Revaben, the notice issued under the Gujarat Agricultural Lands Ceiling Act, 1960 ("the Ceiling Act) was withdrawn. However, since her holding included the land bearing survey No. 526/1 ad-measuring A/13.13 Gunthas and survey no.526/2 ad-measuring A.1.21 Gunthas held by her as tenant of the petitioner, the petitioner challenged the order withdrawing the notice by filing appeal before the Assistant Collector who remanded the matter to the Mamlatdar for deciding the matter afresh. On remand, the Mamlatdar decided the Ceiling Case No. 2175 of 1976 and declared the land bearing survey no. 526/1 ad-measuring 13.03 irrigated area taken as ad-measuring A.26.06 Gunthas as surplus under section 21 of the Ceiling Act, and since land declared as excess was held by deceased Revaben under the Bombay Tenancy and Agricultural Lands Act 1948 ("the Act"), the petitioner was held entitled to restoration of such land under section 19 of the Ceiling Act read with section 32B of the Act. Such order passed by the Mamlatdar was not disturbed by the Page 2 of 22 HC-NIC Page 2 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT Deputy Collector in Ceiling Appeal No.1/88 preferred by respondents No.1 to 5. However, the Tribunal set aside both the orders in the revision application preferred by respondent no.1 to 5 being revision application No. TEN.BA.414/89 and held that the respondent no.1 to 5 were entitled to two units under the Ceiling Act and that there was no excess land with them. Against such order of the Tribunal, the petitioner preferred review application No. TEN.C.A.12/94. In such review application preferred by the petitioner, the Tribunal set aside its earlier order dated 13.8.1993 and upheld the orders made by the Mamlatdar dated 30.3.1988 and the order of the Deputy Collector, Palanpur in Ceiling Appeal No.1/88 dated 30.12.88. However, this Court, in Special Civil Application No. 652 of 1997, set aside the order made by the Tribunal in review application and directed the Tribunal to decide both the applications afresh. It was thereafter the Tribunal heard the review application and rejected the review application by its order dated 21.8.2008. The petitioner has now challenged the original order dated 13.8.1993 passed by the Tribunal in Revision Application No. TEN/BE/414/89 and the order passed in review application dated 21.8.1996 by the present petition.
3. Learned advocate Mr. Jitendra M. Patel appearing for the petitioners submitted that the Tribunal exceeded in its jurisdiction in considering the issue as regards grant of unit to respondent no.1 to 4 though such issue had attained finality land and the petitioner, being the landlord, was held entitled to restoration of surplus lands. Mr. Patel submitted that as provided under section 19 of the Ceiling Act read with section 32B of the Act, the land declared as surplus was tenanted land Page 3 of 22 HC-NIC Page 3 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT was rightly restored to landlord for bona fide requirement as such bona fide requirement is to be decided on the day when the declaration as regards surplus land is made under the Ceiling Act. Mr. Patel submitted that though earlier the application of the petitioner for bona fide requirement was rejected by the concerned authority, however, the application was rejected prior to declaration of surplus land under the Ceiling Act and, therefore, earlier order rejecting the application of the petitioner seeking possession of land for bona fide purpose would not come in the way of the petitioner to claim restoration of land declared as surplus land under the provisions of the Ceiling Act. Mr. Patel submitted that in any case, the Tribunal was not justified in giving one more unit to respondent no.1 as when respondent no.1 - deceased Revaben had relinquished her right from the lands and if relinquishment is not believed, then, respondent no.2 Devaji Manaji was not entitled to separate unit as he was minor on the appointed day under the Ceiling Act. Mr. Patel submitted that even if the age of Devaji was to be considered as on the date of amendment brought into force in the year 1974 i.e. 1.6.1974, Devaji was still minor as per various documents produced before the authority, and therefore, the Tribunal committed serious error in considering Devaji as major. Mr. Patel submitted that if the Tribunal was to consider other material/documents produced before it to decide whether Devaji was major as on 1.6.1974, the Tribunal ought to have remanded the matter to the lower authority so that the petitioner could would have sufficient opportunity to represent before lower authority that Devaji was minor on the relevant dates.
4. Learned Senior Advocate Mr. Shalin Mehta appearing with Page 4 of 22 HC-NIC Page 4 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT learned Advocate Ms. Vidhi Bhatt for Respondents No. 2, 4 and 5 submitted that the right of the landlord for restoration of the surplus land held by the tenant is not automatic but is subject to landlord proving that his/her right under the relevant tenancy law to terminate the tenancy of such land on the ground that he/she bona fide requires the land for cultivating personally subsisted on the date of declaration of such land as surplus land under section 21 of the Ceiling Act. Mr. Mehta submitted that the petitioner had applied for restoration of the land for bona fide personal cultivation, and she lost upto the Tribunal as she was not found entitled to possession of the tenanted land for personal cultivation and her requirement for personal cultivation was found not bona fide. Mr. Mehta submitted that since the petitioner was held not entitled to restoration of the tenanted land for bona fide personal cultivation, right of the petitioner to terminate the tenancy could not be said to be subsisted on the date of declaration of such land as surplus land. Mr. Mehta submitted that even otherwise,as provided by section 32 and 32C of the Act, right of the petitioner under the tenancy law to terminate the tenancy ended much before the declaration of the surplus land such right cannot be re-agitated in subsequent proceedings conducted under the provisions of the Ceiling Act. Mr. Mehta submitted that in any case, the Tribunal has found on available material that the deceased Revaben with her son Devaji were entitled to two units under the Ceiling Act and such declaration for entitlement of two units under the Ceiling Act cannot be permitted to be called in question by the petitioner whose right to restoration of the land did not subsist at the time of declaration of the land. Mr. Mehta submitted that when the State is not aggrieved by the decision of the Tribunal granting Page 5 of 22 HC-NIC Page 5 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT two units to the deceased Revaben and her son, it is not open to the petitioner to challenge the order of the Tribunal on the ground that the Tribunal exceeded in its jurisdiction in considering the case of the deceased Revaben and her son for two units. Mr. Mehta submitted that the Tribunal in any case was within its jurisdiction to consider the question as regards grant of units under the Ceiling Act to the declarant - deceased Revaben as the Tribunal was examining the legality or otherwise of the orders made by the Mamlatdar and Deputy Collector and while examining such orders under the Ceiling Act, it was always open to the Tribunal to consider whether the declarant was entitled to grant of more units or not.
5. Learned A.G.P. Ms. Thakore submitted that the petitioner's requirement of tenanted land for bona fide purpose was rejected and if the right of the petitioner to terminate tenancy did not subsist on the date of declaration of surplus land, the petitioner would not be entitled to restoration of the tenanted land.
6. Having heard the learned advocates for the parties, it appears from the copy of the order dated 20.6.1978 at Annexure - R passed by the Tribunal that the petitioner had preferred application in the year 1973 under sec.31 of the Act seeking possession of the tenanted land from the respondents for personal cultivation. The respondent No.1 to 5 also filed application to declare them as tenants. The application of the petitioner was rejected by the Mamlatdar, and the order of the Mamlatdar was confirmed by the Deputy Collector in appeal and further confirmed by the Tribunal. The application of Page 6 of 22 HC-NIC Page 6 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT respondent No. 1 to 5 was allowed and they were held to be tenants of the petitioner.
7. However, in the proceedings under the Ceiling Act, the Mamlatdar declared 13 acre 3 gunthas of land (26 acres 6 gunthas irrigated land) as surplus land u/s. 21 of the Ceiling Act and further held that the petitioner became entitled to restoration of such land declared as excess land under section 19 of the Ceiling Act read with section 32 of the Act by order dated 30th March, 1988 which was confirmed by the Deputy Collector. However, as stated above, the Tribunal set aside the orders passed by the Mamlatdar and the Deputy Collector and held that the respondent No.1 to 5 were entitled to claim two units and that there was no excess land with them.
8. The question about entitlement of the landlord for restoration of possession of surplus land under section 19 of the Ceiling Act will be required to be decided only after the order under section 21 of the Ceiling Act is made declaring surplus land.
9. Section 21, 22 and 24 of the Ceiling Act read as under:
"21. Tribunal to make order declaring surplus land etc. and consequence thereof. - (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, [1] [(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 [xxx], Page 7 of 22 HC-NIC Page 7 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV 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. Notice to interested persons (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 section19, 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 [1] [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 Page 8 of 22 HC-NIC Page 8 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT 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 meaning of sections 175 and 176 of the Indian Penal Code.
24 - Determination of claim for possession under section 19 and of compensation and apportionment thereof :-
(1) On the day fixed under section 22 or any other day to which the enquiry may be adjourned the Tribunal shall proceed to inquire into the claims, if any, for possession of land under section 19, and the amount of compensation for the land in accordance with section 23, the respective interest of the persons claiming the compensation, and the amount of each encumbrance lawfully subsisting on the land on the date of the order made under section
21.
(2) As respects any claim made by a landlord for possession of surpluslandundersection19,the Tribunal-
(i) shall decide whether such landlord is entitled under section 19 to the possession of the whole or part of the surplus land and if so, the extent of such land, and
(ii) where the landlord is so entitled shall make an order directing the restoration of possession of such land to the landlord.
(3) As respects claims for compensation the Tribunal shall make an award determining-
(i) the amount of compensation payable in accordance with the provisions of section 23,
(ii) the apportionment of the said compensation, Page 9 of 22 HC-NIC Page 9 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT subject to the provisions of sub-sections (4) and (5) among all persons known or believed to be interested in the land of whose claims, it has information, whether or not they have appeared before it.
(4) (a) In the case of land held as tenant, the apportionment of compensation as between the tenant and the landlord shall be on the following basis, that is to say-
(i) two-third of the compensation shall be payable to the landlord and
(ii) one third thereof to the tenant;
(b) Subject to the provisions of sub-section (5) encumbrances created by the landlord or for which the landlord is liable, shall be paid out of the amount of compensation payable to the landlord and those created by the tenant or for which the tenant is liable shall be paid out of the amount of compensation payable to the tenant.
(5) The apportionment of the compensation amongst the holders of encumbrances shall be determined on the following basis, that is to say :-
(a) if the total amount of encumbrances on the land is less than the compensation payable in respect of the land, the amount of encumbrances shall be paid to the holders thereof in full.
[1] [(b) If the total amount of such encumbrances exceeds the compensation payable in respect of the land, the amount of compensation shall be distributed Pro-rata first amongst the following holders of encumbrances irrespective of the dates on which such encumbrances were created, namely -
(i) co-operative societies registered or deemed to have been registered under the Gujarat Co-operative Societies Act, 1961 (Gujarat X of 1962).
(ii) land development banks ;
(iii) the State Bank of India constituted under the State Bank of India Act, 1955 (Act 23 pf 1955) or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (Act 38 of Page 10 of 22 HC-NIC Page 10 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT 1959) ;
(iv) banks specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970(Act 5 of 1970).
If after distribution of the amount of compensation to the aforesaid holders of encumbrances there remains any surplus, the same shall be distributed pro-rata amongst other holders of encumbrances. ].
(6) If the surplus land has come out of the lands referred to in clause (b) or (c) of the proviso to section 15, the transferee of such land shall be entitled, out of the amount of compensation, to the amount of the consideration paid by Him to the transferor and if the amount of compensation is less than the amount of such consideration, the transferee shall be entitled to recover the remaining sum from the transferor.
(7) The award made by the Tribunal subject to an appeal to the Gujarat Revenue Tribunal under section 36 and the decision of the Gujarat Revenue Tribunal on the appeal shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court."
10. As could be seen from the above provisions, separate proceedings are to be taken to decide about the entitlement of the landlord for restoration of the possession of surplus land. However, in the case on hand, the Mamlatdar while declaring surplus land under section 21 of the Ceiling Act, simultaneously ordered to restore the possession of the surplus land under sec. 19 of the Ceiling Act to the petitioner. Section 19 of the Ceiling Act reads as under:
Sec. 19 - Restoration of surplus land held by tenant to landlord (1) Where any person holds the whole or part of the surplus land as tenant then the landlord of such land shall, subject to the provisions of sub-section (2), be entitled to the restoration of the Page 11 of 22 HC-NIC Page 11 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT possession of such land.
(2) If the right of the landlord under the relevant tenancy law to terminate the tenancy of such land on the ground that he bona fide requires the land for cultivating personally subsisted on the date of the declaration of such land as surplus land under section 21, than the landlord shall be entitled to the restoration of possession of so much of such land as he would have been entitled to in accordance with the provisions of the relevant tenancy law had the tenancy been terminated on the aforesaid ground.
(3) The tenancy of land restored to the landlord under this section shall stand terminated, (4) On the restoration of any land to the landlord, the landlord shall hold the land subject to the provisions of the relevant tenancy law in respect of fresh tenant."
11. As per sub-section (1) of sec. 19 of the Ceiling Act, where any person holds whole or part of the surplus land as a tenant, then, the landlord of such land shall become entitled to restoration of such land subject to the provisions of sub-sec.(2) as per which the landlord could be made entitled to restoration of the possession of the surplus land if his or her right under the relevant tenancy law to terminate the tenancy of such land for personal cultivation subsisted on the date of declaration of such land as surplus. Thus, right of the landlord for restoration of possession of tenanted land declared as surplus is not automatic or absolute on declaration of surplus land made under sec. 21 of the Ceiling Act. The landlord could be held entitled to restoration of possession of such land only when it is found that his/her right to terminate the tenancy for personal cultivation subsisted on the date of declaration of surplus land. Such right to terminate the tenancy for personal cultivation was available to the landlord as provided under sec. 31 of the Act. Sec.31 of the Act reads as under:
Page 12 of 22HC-NIC Page 12 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT "31 - Landlord's right to terminate tenancy for personal cultivation and non-agricultural purpose.
(1) Notwithstanding anything contained in sections 14 and 30 but subject to sections 31A to 31D(both inclusive), a landlord (not being a landlord within the meaning of Chapter III-AA) may, after giving notice and making an application for possession as provided in sub-section (2), terminate the tenancy of any land (except a permanent tenancy), if the landlord bona fide requires the land for any of the following purposes:-
(a) for cultivating personally, or
(b) for any non-agricultural purpose.
(2) The notice required to be given under sub-
section (1) shall be in writing, shall state the purpose for which the landlord requires the land and shall be served on the tenant on or before the 31st day of December 1956. A copy of such notice shall, at the same time, be sent to the Mamlatdar. An application for possession under section 29 shall be made to the Mamlatdar on or before the 31st day of March 1957.
(3) Where a landlord is a minor, or a widow, or a person subject to mental or physical disability [3] [* * *] then such notice may be given [4] [and an application for possession under section 29 may be made,]-
(i) by the minor within one year from the date on which he attains majority;
(ii) by the successor-in-title of a widow within one year from the date on which her interest in the land ceases to exist;
(iii) within one year from the date on which mental or physical disability ceases to exist; and [ * * * *] [Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, Page 13 of 22 HC-NIC Page 13 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.] (4) Notwithstanding anything contained in sub- section (3), -
(a) the right conferred under the said sub-section (3) on a landlord who is a minor or a person subject to mental or physical disability shall, after the specified date, be exercisable.
(i) by such landlord, in a case where the period of one year within which such right may be exercised under sub-section (3) has commenced, within such period of one year or within a period of six months from the specified date, whichever period expires earlier;
(ii) by the guardian or other legal representative of such landlord, in a case where the period of one year within which such right may be exercised under sub-section (3) has not commenced, within a period of six months from the specified date;
(b) the right conferred under the said sub-section (3) on a landlord who was a widow on the first day of April, 1957 shall, after the specified date,-
(i) be exercisable by the widow within a period of six months from the specified date;
(ii) be exercisable, in a case where the interest of the widow in the land has ceased to exist by reason of her death or otherwise, before the specified date but the period of one year within which her successor-in-title is entitled to exercise the right under sec.31 has not expired, by the successor in title of the widow within a period of one year from the date on which her interest in the land ceased or, within a period of three months from the specified date, whichever period expires earlier;
(iii) in a case where the interest of the widow in the land ceases to exist on or after the specified date, expire on the date on which her interest so ceases to exist].
12. As stated above, the petitioner had already lost upto Tribunal in her claim under sec. 31 of the Act for restoration of the lands held by respondent no.1 to 5 as tenant for personal cultivation. The Tribunal in its judgment dated 20.6.1978 passed in revision application No. TEN-BA-185-76 and 186-76, Page 14 of 22 HC-NIC Page 14 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT held and observed as under:
"We have to read the evidence of Bai Hira as a whole and from her admission, it is abundantly clear that all these properties were joint family properties and there was no partition of the joint family properties and as such when she is joint with her nephew Mafatlal and Mafatlal is maintaining her and Mafatlal has other source of income. It cannot be said that all her requirement of the disputed land is bona fide. Again, as discussed above by me, 3 lands were sold by her in 1960. Now, if she really wanted the land for bona fide personal cultivation, it is impossible to believe that she could have sold the lands in 1969. These lands were admeasuring about 14 acres and it is abundantly clear that if she really wanted the disputed lands for personal cultivation she would not have sold this land in 1969. In para 6 of the application, she has stated that she cannot maintain herself in these hard days in an income of Rs.150/- per year and she has no other income or any other properties and she wanted the land for personal cultivation forgetting the land cultivated through servants. As discussed above by me, it is clear that the land is the joint property of the husband of the applicant and the father of Mafatlal and she is maintained by Mafatlal and so there is no question of her requirement of the disputed land for bona fide personal cultivation. In fact, there are no bonafides whatsoever on her part as it is abundantly clear that Mafatlal had many properties and she has also good income and she is all throughout maintained by Mafatlal. In fact 3 lands were sold by Mafatlal as admitted by her and therefore both the lowers courts have rightly held that the applicant is not entitled to possession either of the whole or portion of the disputed land for personal cultivation as her requirement of personal cultivation is not bona fide."
13. As could be seen from the above finding recorded by the Tribunal, the petitioner's requirement of the lands, held by respondent no.1 to 5, for personal cultivation was not found bona fide. Mr. Patel however submitted that the claim made by the petitioner for restoration of the possession of tenanted Page 15 of 22 HC-NIC Page 15 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT lands under sec. 31 of the Act was prior to declaration of surplus land under sec. 21 of the Ceiling Act and what is required to consider is whether right to terminate the tenancy subsisted on the day of declaration of surplus land made under sec. 21 of the Ceiling Act. Mr. Patel therefore submitted that based on the judgment of the Tribunal, the claim of the petitioner for restoration of the possession of surplus land under sec. 19 cannot be denied. Mr. Mehta on the other hand submitted that the right to terminate the tenancy is available to the landlord only once and that such right under sec. 31 was available before Amending Act of 1973 and on condition of giving notice for termination of tenancy and making of an application for possession as provided in sub sec. (2) of section 31 of the Act. The Court finds that the right of termination of tenancy to the landlord for personal cultivation and for non agricultural use of the land was available to the landlord under section 31 of the Act only for limited period. Initially, such right was to be exercised by the landlord before 31st March, 1957 with further provision for the minor to make application for such purpose within one year from the date such minor attains majority and to the successor in title of the widow within one year from the date on which her interest in the land ceases to exist and then further rights were given to the minor or the person subject to mental or physical disability and to the widow by Amending Act of 1973 of termination of tenancy within fixed period after specified date i.e. 1.6.1974. Thus, the right under sec. 31 to terminate the tenancy for personal cultivation was conferred for a limited period. The petitioner having lost her claim for such right by the last judgment of the Tribunal which has become final, and since such right was available for limited period, it cannot be said that the right to Page 16 of 22 HC-NIC Page 16 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT terminate the tenancy on the ground that she bona fide required the land for personal cultivation subsisted on the date of declaration of surplus land under sec. 21 of the Ceiling Act.
14. Now, if the challenge to the order of the Tribunal is considered, it appears that the Tribunal considered certificate of birth of respondent No. 2 Devaji Manaji issued by the Principal of the School, copy whereof is at Annexure-K page 108 wherein it is stated that as per the Age Register 97/82 of the School, the birth date of birth of respondent No.2 Devaji Manaji was 1.5.1957. The Tribunal has held that as per this certificate, the respondent No.2 could be said to be major on the specified date and thus was entitled to additional unit. Mr. Patel,however, submitted that the jurisdiction of the Tribunal under sectin38 of the Ceiling Act is limited and that the Tribunal seriously erred in not considering the vaccination certificate of respondent No.3 produced on record before the Tribunal. As per such vaccination certificate, date of birth of respondent No.3 Bhemaji was considered to be 30.10.1961 and as submitted by Mr. Patel, two years difference if considered between respondent No.2 and 3, respondent no.2 would be minor as on 1.4.1976. The Tribunal has considered such argument advanced before it and has rightly discarded such argument on the ground that on assumption of difference of two years between two brothers, date of birth of respondent No.2 could not be considered in the year 1959. The Court finds no error in such consideration by the Tribunal. To determine the date of birth of the respondent no.2, only his school certificate was available and the vaccination certificate was not of respondent No.2. When the school certificate showing date of birth of respondent no.2 as 1.5.1957 was available, Page 17 of 22 HC-NIC Page 17 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT same was rightly considered by the Tribunal in absence of any other reliable evidence. It is required to note that in the declaration form filled in by the respondents no.1 to 5, date of birth of respondent No.2 and his brother Bhemaji were shown as 1.5.1957 and 1.3.1958 which are as reflected in the school certificates of both of them produced before the Tribunal. The Tribunal has referred the declaration form and also considered the evidence given by their mother - deceased Revaben stating that her two sons i.e. respondent no.2 and his brother Bhemaji were major on 1.4.1976. Thus, it could be said that the entry in school certificate produced before the Tribunal was supported by the declaration form submitted by respondent No.1 to 5 and also by the evidence of deceased Revaben. Mr. Patel then submitted that since deceased Revaben relinquished her right before 1.4.1976 from tenanted lands, no additional unit could have been granted. This argument cannot be accepted as the holding of deceased Revaben was to be considered as on appointed date and if the tenanted land is not be considered in her holding, her holding would be below ceiling limit and other heirs would retain such land under the Act.
15. Mr. Patel also submitted that the Tribunal has gone beyond the order of remand made by the Deputy Collector and confirmed by it which was for limited purpose just to consider the irrigation certificate and not to decide the other issues including the issue of grant of additional unit. However, in view of what is observed by Tribunal in para 8 and 9 of its earlier order dated 18.4.1986, the contention cannot be accepted. Therefore, reliance placed by Mr. Patel on the decision in the case of Raj Madhavsang Gulabsang Parmar Page 18 of 22 HC-NIC Page 18 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT Ranchhodbhai Galabsang & Ors., reported in 1976 GLR 689 on the jurisdiction of the Tribunal under sec. 76 of the Act will have no application to the facts of the case. Mr. Patel also relied on other judgments on the aspect of scope of remand under Order 41, rule 23 of the Code of Civil Procedure, ("CPC") aspect of additional evidence under Order 41, Rule 27 of the CPC, and on the aspects of the tenant's rights of retaining the land as deemed purchaser vis-viz Ceiling Act. The Court however finds that such judgments do not require consideration in the facts of the case. Mr. Patel then relied on the decision in the case of Patel Panubhai Shanabhai v. The Gujarat Revenue Tribunal & Anr., reported in 1977 GLR 758 so as to contend that the status of member of family determination of surplus land should be by considering the holdings on the appointed day. In the said judgment, the Court held and observed in para 4 as under:
"4. The learned counsel for the petitioner then argued that the Act had been amended in 1974 by the Amending Act 2 of 1974 and that under the circumstances, the matter should be remanded to the competent authority for re-determining the extent of the surplus. Now, what has been done by the amendment is to lower the ceiling. Before amendment, the ceiling area in respect of the holding of the petitioner was 72 acres. After the amendment, the ceiling area is 36 acres. These facts are not in dispute. Under the circumstances, no useful purpose will be served by remanding the matter to the ALT for re-determining the extent of the surplus. It was, however, argued by the learned counsel for the petitioner thats. 6 itself had been amended and that a remand was called for by reason of the fact that two minors had attained majority during the pendency of the proceedings in the High Court. There is no substance in this contention either s. 6 of the Act after amendment in so far as relevant reads as under: -
"6. (1) Notwithstanding anything contained in any law for the time being in force or in any Page 19 of 22 HC-NIC Page 19 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT agreement, usage or decree or order of a court, with effect from the appointed day no person shall, subject to the provisions of sub-ss. (2), (3), (3A) and (3B) be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.
(2) Where an individual who holds land, is a member of a family, not being a joint family which consists of the individual and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters irrespective of whether the family also includes any, major son and land is also separately held by such individual's Spouse or minor children, then the land held by the individual and the said members of the individual's family excluding major sons, if any, shall be grouped together for the purposes of this Act and the provisions of this Act shall apply to the total land so grouped together as if such land had been held by one person.
x x x x x x x x x
x x x x x x x x x
(3C) Where a family or a joint family
irrespective of the number of members includes a major son, then each major son shall be deemed to be a separate person for the purposes of sub-s. (1)."
Now, sub-s. (2) of s. 6 as amended also provides that in computing the extent of the surplus in respect of holding of an individual, holdings of his minor sons and unmarried daughters as also his spouse have to be grouped together. It is, therefore, futile to contend that the provisions as amended can benefit the petitioner. The fact that minor sons of the petitioner have attained majority meanwhile is a matter of no consequence. According to the learned counsel for the petitioner, their minority should be adjudged as in 1974. This argument is altogether untenable and difficult to comprehend. Sub-s. (1) of s. 6 of the Act as it stands after the amendment, in clear terms provides that no person shall hold land in excess of the ceiling area subsequent to the appointed day. The expression 'appointed day' of necessity must be Page 20 of 22 HC-NIC Page 20 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT construed in the context of the definition embodied in sub-s. (4) of s. 2 of the Act. And the parent Act came into force on September 1, 1961.
Therefore, the appointed day in sub-s, (1) of S. 6 is referable to September 1, 1961. The expression 'minor children' embodied in subs. (2) of S. 6 must, therefore, be construed in the context of the appointed day within the meaning of sub-s. (1) of S. 6 read with sub-s. (4) of S. 6, that is to say, September 1, 1961. The learned counsel for the petitioner advanced a surprising argument that the appointed day in the Act as amended in 1974 must be construed with reference to the date of enforcement of the Amending Act viz. Gujarat Act No. 2 of 1974. Now Gujarat Act No. 2 of 1974 does not contain the definition of the expression 'appointed day' at all. When construing the parent Act as amended expression 'appointed day' must be construed with reference to the definition clause contained in the Act itself. There cannot be two appointed days in respect of sub-s. (2) of S. 6 notwithstanding the amendment of the parent Act in 1974. The amended provision has already been reproduced hereinabove and the amended provision refers to grouping of the land belonging to the individual along with the land belonging to the minor children. And this grouping has to be made in the context of subs. (1) of S. 6 which provides for surplus to be determined in the light of the holding as on the appointed day, that is to say, on the date of application of the parent Act viz., September 1, 1961. There is, therefore, no substance in the contention urged on behalf of the petitioner. The learned counsel for the petitioner has invited my attention to a decision rendered by B. K. Mehta, J. in Special Civil Application No. 2188 of 1971 decided on December 15, 1976 (Guj). However, there is nothing in the said decision which leads to a contrary conclusion."
16. In above said judgment,the question considered was about grouping of the lands of minor individual members of family as on the appointed day in computing the extent of surplus land of individual. The Court held that the expression minor children embodied in sub-sec.(2) of sec. 6 must be construed in the context of appointed day within the meaning Page 21 of 22 HC-NIC Page 21 of 22 Created On Fri Nov 27 01:13:40 IST 2015 C/SCA/12744/2008 CAV JUDGMENT of sub-sec.(1) of sec. 6. However, right of major as on 1.4.1976 to get one separate unit was not an issue. As per sec. 3(D) of the Ceiling Act, the members comprised in a family on specified date are to be taken into considering for the purpose of sub-sec. (2), 3(B) or 3(C). It appears that to give benefit of separate unit to the major member as on specified date, the word "on appointed day" was deleted from sec. 15 for computation of surplus land when the Ceiling Act was amended in 1974. Therefore, judgment relied on by Mr. Patel shall have no application.
17. For the reasons stated above, the Court finds that the petition is devoid of any merits. Hence it is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
18. After the judgment is pronounced, learned Advocate Mr. Patel requested for extension of the interim relief. Learned Senior Counsel Mr. Mehta objected against extension of interim relief.
19. However, in order to enable the petitioner to challenge this judgment, the Court deems it proper to extend the interim relief for a period of four weeks. It is accordingly extended for four weeks.
Sd/-
(C.L.SONI, J.) anvyas Page 22 of 22 HC-NIC Page 22 of 22 Created On Fri Nov 27 01:13:40 IST 2015