Gujarat High Court
Suryakunverba Prahladsingh vs State Of Gujarat & on 20 June, 2014
Author: Jayant Patel
Bench: Jayant Patel
C/SCA/1856/1986 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1856 of 1986
With
CIVIL APPLICATION NO. 6671 of 2014
In
SPECIAL CIVIL APPLICATION NO. 1856 of 1986
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the
Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil
judge ?
==============================================================
SURYAKUNVERBA PRAHLADSINGH, THROUGH HER POWER OF
ATTO.....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==============================================================
Appearance:
MS MEGHA JANI, ADVOCATE for the Petitioner(s) No. 1.1
1.5
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1 2
==============================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 20/06/2014
ORAL JUDGMENT
Page 1 of 14
C/SCA/1856/1986 JUDGMENT
1. The learned counsel appearing for the applicants orally submitted that she is to file the application for joining Tribunal as party and therefore, the said application may be permitted to be circulated with the main matter.
2. The learned AGP Mr.Jayswal, had no objection for circulation of the said Civil Application. Hence, papers were called for and the present petition is heard with the said Civil Application simultaneously.
3. The short facts of the case appears to be that deceased Suryakunvarba Prahladsinh (hereinafter referred to as the "petitioner") was holding various agricultural lands at village Ukhralla and Juna Padar of Ghogha Taluka of Bhavnagar District. The petitioner owned two parcel of lands, one admeasuring 130 acres 3 gunthas of land at village Ukhralla and another admeasuring 314 acres 15 gunthas at village Juna Padar, total admeasuring 444 acres 18 gunthas. Since the lands were held by the petitioner in excess of the prescribed ceiling limit under the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as the "Act"), the proceedings were initiated before the Mamlatdar & ALT under the Act. The Mamlatdar & ALT after conducting the case, passed the order on 31.01.1984 whereby he permitted three units since two sons of the petitioner, viz., Kirtikumar and Rajendrasinh, were major on the appointed date and therefore, Page 2 of 14 C/SCA/1856/1986 JUDGMENT the permissible limit in all was found to be of 144 acres of land and surplus land was found to be of 300 acres & 18 gunthas by the Mamlatdar and the said portion of 300 acres & 18 gunthas was declared as surplus land. It was recorded by the Mamlatdar in the order that the option was given to the petitioner for declaring retainable land, but such declaration was not given by the petitioner. The matter was carried in appeal before the Deputy Collector, being Appeal No.4/8384 and it was ultimately found by the Deputy Collector that the order passed by the Malatdar & ALT deserves to be confirmed and he dismissed the appeal. The matter was further carried in revision by the petitioner before the Gujarat Revenue Tribunal under section 38 of the Act. The Tribunal after considering the contention raised on behalf of the petitioner and after hearing the State, delivered the Judgment on 10.01.1986 (AnnexureC) and dismissed the revision for the reasons recorded therein. It is under these circumstances, the present petition before this Court.
4. I have heard Ms.Megha Jani, learned counsel for the petitioner and Mr.Jayswal, learned AGP for the respondents.
5. The first contention raised by the learned counsel for the petitioner was that the Tribunal has not correctly considered the record of the case inasmuch as a portion of the land was a part Page 3 of 14 C/SCA/1856/1986 JUDGMENT of hilly area wherein cultivation was not permissible and therefore, merely because in village form nos.7 and 12, it was shown as for the crop of grass, such land could not be considered as agricultural land for the purpose of commutation of the ceiling limit. It was alternatively submitted that even if such lands were included, as it was a part of hilly area, the petitioner would be entitled to 12.5 % more land than the prescribed limit. In support of the said contention that the land was a part of hilly area, the learned counsel wanted to read the evidence of talati that the land was described as "Moto Dungar" and she also wanted to read the evidence of talati to show that there were mines over the land at village Ukhralla. She submitted that the Tribunal has not properly considered the said aspect and therefore, the same may be considered in the present petition.
6. It may be recorded that the petitioner in the title of the petition has described as the petition under Article 227 of the Constitution. Therefore, the petition is essentially under Article 227 of the Constitution. Not only that, but the petitioner herself had invoked the revisional jurisdiction of the Tribunal and therefore, it would not lie in the mouth of the petitioner to contend that the Tribunal had no power or authority to decide the revision application. If the Tribunal had the power to decide the revision application and it has Page 4 of 14 C/SCA/1856/1986 JUDGMENT exercised its power, it would not be a case of issuance of writ of certiorari as sought to be canvassed by the learned counsel for the petitioner. When the party herself has invoked the jurisdiction of an authority, she cannot be heard to say that the order has been passed without their being any authority on the part of the Tribunal. Hence, it appears that the language used in the prayer for issuance of writ of certiorari would be contrary to the conduct of the party for invoking of the jurisdiction of the Tribunal. If the Tribunal had the authority and had exercised the authority and the contention of the petitioner is that it has not properly exercised the power, it would be a case for petition under Article 227 of the Constitution. Be it noted that the Tribunal has not passed any order in excess or in addition to the order passed by the Mamlatdar and/or Deputy Mamlatdar which was the subject matter of the appeal. Therefore, when the Tribunal has not passed the order while exercising the revisional jurisdiction exceeding or in addition to the order passed by the Mamlatdar and/or Deputy Collector and the order of the Tribunal is challenged in writ jurisdiction of this Court, it would be essentially a petition under Article 227 of the Constitution.
7. Apart from the above, the petition is admitted as back as on 07.04.1986 and it has remained pending before this court for about 28 years. No attempt Page 5 of 14 C/SCA/1856/1986 JUDGMENT whatsoever has been made earlier to move any application to implead Tribunal as party. Be it recorded that the present petition was listed for hearing on 24.09.2013, 10.10.2013 and thereafter, on 03.03.2014. But no such attempt was made to file the application and move the Court for joining the Tribunal as party. When the matter is listed today, the learned counsel at the beginning submitted that she has to file the application for joining Tribunal as party with a view to see that LPA can be maintained. Circulation of the application is permitted. However, considering the facts and circumstances when the petitioner herself in the title of the petition treated the petition as under Article 227 of the Constitution and the fact that the petitioner herself had invoked the jurisdiction of the Tribunal and even has averred in the petition and it is not a case of the petitioner that the Tribunal has exercised the jurisdiction which was not vested to it, the present application for joining the Tribunal as the party at the fag end of the final hearing of the matter could not be said as not bonafide and it can rather be termed as misuse of the process of law. If such applications are leniently viewed, it would give encouragement to the party to misuse the process of law. Under the aforesaid circumstances, it appears that the application for joining Tribunal as party should not be entertained. Hence, the said application is Page 6 of 14 C/SCA/1856/1986 JUDGMENT dismissed.
8. Further, if the merits of the petition are to be considered, in my view, the first contention raised by the learned counsel for the petitioner to exclude the land of hilly area, is covered by the decision of the Apex Court in the case of Nagbhai Najbhai Khackar vs. State of Gujarat reported at (2010) 10 SCC 594 and the relevant observations are from paras 18 to 26, which reads as under:
"18. The short question which is inborn in this batch of cases concerns applicability of the Gujarat Agricultural Lands Ceiling Amendment Act, 1972 which came into force w.e.f. 1.4.1976 to the "bid lands". It is the case of the appellants before us that the "bid lands" of the appellants do not fall within the definition of "dry crop land" under Explanation I(e) to Section 2(6) of the 1960 Act principally because the said definition under the unamended Act included grass lands, that is to say, lands which "abounds in grass grown naturally and which is capable of being used for agricultural purposes". According to the appellants, in the amended Act, through oversight, the word "includes" in Explanation I(e), which defines "dry crop land" stood omitted and, therefore, this Court could always fill in the omission by reading the word "includes"
in the said clause. According to the appellants, the legislative intent behind enacting clause (e) of Explanation I was to include only cultivable lands in the definition of "dry crop lands" as the ultimate object of the 1960 Act is to fix a ceiling on lands held for agricultural purpose and consequently "bid lands" which are uncultivable waste lands cannot be Page 7 of 14 C/SCA/1856/1986 JUDGMENT included in Explanation I(e).
19. We find no merit in this argument. The definition of "land" is specifically amended by the Amendment Act 2 of 1974 to include "bid lands" of Girasdars or Barkhalidars in Section 2(17)(ii)(c). The Statement of Objects and Reasons of the Amending Act also makes it clear that there was a specific legislative intent of including "bid lands"
of Girasdars or Barkhalidars within the definition of "land". This inclusion does not make any distinction between cultivable and uncultivable bid lands. The insertion of bid lands in Section 2(17) is without any such qualification. Therefore, this specific intent of the Legislature must be given its full meaning. If the argument of the appellants is to be accepted, it would defeat the very purpose of the 1960 Act because in that event a holder could hold lands to an unlimited extent by including waste lands in droughtprone areas, hill areas and waste lands within their holdings.
20. There is one more reason for not accepting the argument of the appellants. The subject lands survived acquisition under the 1952 Act only because they were "bid lands" which by definition under those Acts were treated as lands being used by the Girasdars for grazing cattle (see Section 2(a) of the 1952 Act). Now, under the present Ceiling Act, Section 2(1) defines the use of land for the purpose of grazing cattle as an agricultural purpose. Thus, "bid lands" fall under Section 2(1) of the Ceiling Act. This is one more reason for coming to the conclusion that the Ceiling Act as amended applies to "bid lands".
21. It is also important to note that under Section 5(1) of the 1952 Act all lands saved from acquisition had to be "bid lands" which by definition under Section 2(a) of the 1952 Act were the lands being used by a Girasdar Page 8 of 14 C/SCA/1856/1986 JUDGMENT or a Barkhalidar for grazing cattle or for cutting grass. If the lands in question were put to any other use, they were liable to acquisition under Section 5(2). Because the subject lands were used for grazing cattle, they got saved under the 1952 Act and, therefore, it is now not open to the appellants to contend that the subject lands are not capable of being used for agricultural purpose.
22. Now, coming to the question of interpretation of the definition of the words "dry crop land" in Explanation I(e), one finds that the definition has two parts, namely, (i) "land other than the land specified in paragraphs (a) to (c)" and (ii) "grass land". Thus, the first part includes all lands other than those specified in paragraphs (a) to (c). Therefore, once the subject land falls in the first part of definition of the word "dry crop land" which land comes under Section 2(17) and which falls outside paragraphs (a) to (c) then such lands would fall within the definition of the words "dry crop land". Further, there are two reasons why "grass land" stood separately defined in Explanation I(e). Firstly, under the proviso to Section 5, which is also inserted by the Amending Act, a distinction is made between "grass lands"
included within "dry crop land" and "grass lands" falling in the desert or hill areas of droughtprone areas for fixing the ceiling of dry crop land in those areas. Secondly, under clause (f) to Explanation I, "grass land" and not all "dry crop land" is deemed to be rice land in certain situations.
23. The proviso to Section 5 itself makes it clear that by the Amending Act of 1974 the Legislature was placing a ceiling even on desert and hill areas. The proviso inter alia states that the ceiling limit with reference to "dry crop land" shall be 12 = per cent more than that specified in the Page 9 of 14 C/SCA/1856/1986 JUDGMENT Schedule which makes it clear that the Legislature intended to include even desert and hills in droughtprone areas within the definition of "dry crop land". Once such lands are used for grazing of cattle, Section 2(1) of the Ceiling Act would kick in and consequently the "bid lands" would stand covered by the Ceiling Act. The definition of "dry crop land" under Section 2(6) is relevant for the purpose of ascertaining the extent of ceiling limit under Schedule I. It is important to note that the subject lands got saved from acquisition under the 1952 Act only because the appellants were the holders of "bid lands" which were put to use for grazing of cattle or cutting of grass. It is these very lands which are now sought to be covered by the 1960 Act, as amended.
24. We also do not find any merit in the argument advanced on behalf of the appellants that the Legislature unwittingly through oversight left out the word "includes" in the definition of "dry crop land" in Explanation I(e). If one looks at the Pre1974 Act under Section 2(6) which defined "class of land", it covered four items, namely, perennially irrigated land, seasonally irrigated land, dry crop land and rice land, whereas under the Post1974 Act, rice land has been deleted from the "class of land". Under the Pre1974 Act, "dry crop land" was defined by clause (e) of Explanation to mean "land other than perennially or seasonally irrigated or dry crop land or rice land" and it included "grass land", whereas under Post1974 Act, not only the word "includes" but even the words "rice land" do not find place in the definition of "dry crop land" in clause (e) of Explanation I.
25. One of the reasons for this structural change is indicated by the judgment of the Gujarat High Court in the case of Krishnadas Page 10 of 14 C/SCA/1856/1986 JUDGMENT Vithaldas Sanjanwala v. The State of Gujarat and Ors. [(1966) 7 GLR 244] in which it has been laid down that ordinarily "grass lands"
would be "dry crop lands" within the meaning of clause (e) of Explanation to Section 2(6) of Pre1974 Act as the definition of "dry crop land" included "grass land", however, in a given case the Tribunal could promote the grass land by declaring it to be a rice land falling under Section 2(6)(iv) (see Explanation I(f) to Section 2(6) of the Pre 1974 Act).
26. According to the said decision, which has been consistently followed thereafter, "grass land" of the kind mentioned in clause
(e) could be promoted to the category of rice land if the Tribunal found that such grass land was situated in a local area referred to in clause (d) and if in the opinion of the State Government such land was found fit for cultivation of rice. Therefore, the promotion of the grass land to the category of rice land, according to the said decision of the High Court, was dependent upon an objective fact which was justiciable and the determination of a subjective fact by the State Government. Consequently, clause (d) and clause (e) of the Post1974 Act are drastically different from the structure of the said clauses in the Pre1974 Act. There is no merit, therefore, in the contention advanced on behalf of the appellants that the Legislature had through oversight omitted the word "includes" from Explanation I(e)."
9. As per the above referred decision and the aforesaid observations made by the Apex Court, land located in the hilly area is also included for the purpose of holding under the Act. Hence, the contention cannot be accepted.
Page 11 of 14C/SCA/1856/1986 JUDGMENT
10. The attempt on the part of the learned counsel to contend that the mines were located over the land cannot be countenanced for the simple reason that the lease given for the purpose of mines is only after the appointed date. Meaning thereby, on the appointed date, when the lease was not in existence, the mining activity could not have been considered. The case before the Mamlatdar when conducted is bound to be at the later date after the appointed date. Therefore, if on the appointed date the land stood as covered by the span of the Act merely because subsequently, the holder has converted or changed the character of the land so as to make it noncultivable, would not affect in any manner the application of the Act and also for computation of the land permissible upto the ceiling limit. If such is permitted, any holder of the land can easily defeat the purpose of the land reform and thereby, may get premium of his own conduct by changing the character of the land. Hence, the said contention cannot be accepted.
11. As regards the alternative contention raised by the learned counsel for the appellant, it appears that such a contention that the petitioner is entitled to 12.5% more land treating the same as falling in the hilly area is a mixed question of fact and law. All the lower authorities have accepted the land as bid land where the grass is grown and for such purpose, entry was also reflected in the village form nos.7 and 12. At Page 12 of 14 C/SCA/1856/1986 JUDGMENT no point of time, it was contended by the petitioner before any of the authority that as the land is part of hilly area, she would be entitled for 12.5% more land than the prescribed limit. Unless there is any factual foundation, the law cannot be applied as sought to be canvassed. The attempt to read the deposition of the talaticummantri by the learned counsel and thereby, to claim the land as that of hilly area by the title of the land as "Moto Dungar" can also not be countenanced for the simple reason that the title of the land would not reflect the actual character or cultivability of the land. There has to be a positive evidence that the land comprised of hill or mountain. Further, as observed earlier, and so is considered by all the lower authorities that in village form nos.7 and 12, such aspect is not reflected but the lands are shown as for cultivation of grass. Hence, I find that when such is neither reflected by the record nor such contention was raised before the lower authority, it cannot be permitted to be raised for the first time in a petition under Article 227 of the Constitution.
12. In view of the above, it cannot be said that the Tribunal has committed an error in exercise of the power in dismissing the revision application.
13. Under the circumstances, Civil Application No.6671/14 as well as the petition both are dismissed. Rule discharged. Considering the Page 13 of 14 C/SCA/1856/1986 JUDGMENT facts and circumstances, no order as to costs.
(JAYANT PATEL, J.) bjoy Page 14 of 14