B. J. DIVAN, J. ( 1 ) THIS Special Civil Application raises an interesting question as to what can be said to be irrigated land while considering the ceiling area for the purposes of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the Act ). The petitioner is the tenant and the respondent is the landlord. The landlord had obtained the certificate under the provisions of sec. 88c of the Act and was a certified landlord and the petitioner was the excluded tenant. After the certificate under sec. 889 was obtained the landlord filed an application under sec. 32t of the Act for possession of the land for personal cultivation. Under the provisions of sec. 32t (5) (b) ordinarily the landlord is entitled to take possession of half the land leased by him to the tenant but if the landlord has not been cultivating personally any other land or has been cultivating personality other land less than one half an economic holding and the opponent has been cultivating or is entitled to cultivate personally other land exceeding half an economic holding the landlord is entitled to take possession of the whole of the land leased and the question arose before the Mamlatdar as also before the District Deputy Collector in appeal and the Gujarat Revenue Tribunal in revision as to whether the tenant had more than half an economic holding within the meaning of secs. 32t (5) (b ). The whole question turned upon the factor whether some portion of the land of the tenant was irrigated land or not. It is not in dispute before me that while considering the total area of an economic holding twice the area of the irrigated land has to be considered as compared with the unirrigated land. An economic holding in this particular area where the lands in dispute are situated is 16 acres and half the economic holding would therefore be 8 acres. If any portion of the tenants holding is irrigated for the purpose of considering whether half the economic holding is made up or not the area of the irrigated land has to be doubled and it is that double area which is taken into consideration for the purpose of finding out whether the land in the occupation of the tenant exceeds half the economic holding or not. ( 2 ) BEFORE the Mamlatdar the Deputy Engineer Mahi Canal having his office at Matar in Kaira District was examined; and he has said in his deposition that some of the S. No. occupied by the tenant were within the command area of Mahi Canal. On this evidence of the Deputy Engineer the Tribunal held that as those S. Nos. were within the command area of Mahi Canal they should be treated as irrigated land and making its calculations on that footing the Tribunal came to the conclusion that the lands in possession of the tenant for the purpose of calculating his economic holding would come to 10 acres and 10 gunthas and would thus exceed half the economic holding. According to the Tribunal the landlord would then be entitled to get the entire land instead of half the land. It is against this decision of the Gujarat Revenue Tribunal that the present Special Civil Application has been filed. ( 3 ) SEC. 6a of the Act provides 6 For the purposes of this Act (a) irrigated land whether perennially or seasonally irrigated shall not include land irrigated by sources other than canals or bandharas within the meaning of the Bombay Irrigation Act 1879 or any lift irrigation system constructed or maintained by the State Government. We are not concerned with sub-sec. (b) of sec. 6a. In this negative definition of irrigated land irrigated by a canal or bandhara or any lift irrigation system constructed or maintained by the State Government would fall within the definition of irrigated land. Barring sec. 6a there is no other definition of irrigated land in the Tenancy Act. However in the Gujarat Agricultural Lands Ceiling Act 1960 which also deals with a topic in pari materia with the concept of an economic holding under the Tenancy Act by sec. 2 (6) lands are classified in the four different categories. Two of those categories are (1) perennially irrigated lands; and (2) seasonally irrigated lands. The Explanation to sec. 2 (6) of the Ceiling Act indicates that whether for perennially irrigated or seasonally irrigated there is one definite concept viz. that the irrigated land must be assured of supply of water. 2 (6) lands are classified in the four different categories. Two of those categories are (1) perennially irrigated lands; and (2) seasonally irrigated lands. The Explanation to sec. 2 (6) of the Ceiling Act indicates that whether for perennially irrigated or seasonally irrigated there is one definite concept viz. that the irrigated land must be assured of supply of water. The supply of water might be assured for 10 months or more in a year or less than 10 months but more than four months between 15th September to the end of February of the succeeding year. It is therefore clear that in order to amount to irrigated land must be assured of supply of water from a canal so far as the facts of the present case are concerned. ( 4 ) UNDER the Bombay Irrigation Act 1879 sec. 3 (6a) defines lands under Irrigable command of a canal and that definition says:- lands undo irrigable command of a canal means such lands as are irrigated or capable of being irrigated from the canal being under in command and shall include also such lands as are or shall be deemed to be irrigated within the meaning of sec. 48. By virtue of sec. 3 (6a) of the Irrigation Act even land which is capable of being irrigated from the canal comes within the meaning of land under command area or Irrigable command of a canal. ( 5 ) IT has been contended before me that though the land may be capable of being irrigated from the canal in fact because of various other facts in may not in fact be irrigated from that canal. It is rightly pointed out by Mr. Vaishnav on behalf of the respondent that under sec. 56c of the Bombay Irrigation Act irrigation cess has to be paid in respect of lands under irrigable command of a canal i. e. in respect of lands which are irrigated or are capable of being irrigated from the canal or which are teemed to be Irrigated within the meaning of sec. 48. sec. 48 of the Irrigation Act deals with lands deriving benefit from a canal by reason of percolation or leakage from the canal and in the light of sec. 56c all lands which are within the irrigable command of a canal are to be subject to the levy of irrigation cess. 48. sec. 48 of the Irrigation Act deals with lands deriving benefit from a canal by reason of percolation or leakage from the canal and in the light of sec. 56c all lands which are within the irrigable command of a canal are to be subject to the levy of irrigation cess. Hence merely because a particular plot of land is subject to the levy of irrigation cess it does not necessarily follow that it is in fact irrigated land. What is required for the purpose of computation of an economic holding is not land capable of being irrigated but land which is in fact irrigated. Sec. 20a of the Irrigation Act clearly indicates that even though land may be capable of being irrigated be reason of certain factors it may Dot in fact be irrigated. Sec. 20a is in these terms :- if in respect of ally area in which lands are capable of being irrigated from canal the Canal-Officer specially empowered in this behalf by the State Government (hereinafter referred to as the authorised Canal-Officer) is of the opinion that in the absence of water courses the irrigation of such lands has not been possible or has suffered or is likely to suffer and that in the public interest it is necessary to frame a scheme providing for the construction of water-courses in such area he shall prepare a draft scheme for such area. It is thus clear from the very provision of sec. 20a that even lands which are capable of being irrigated from a canal may not in fact be irrigated in the absence of water courses because the section contemplates framing of a scheme providing for the construction of water-courses in the area inter alia when the Authorised Canal Officer is of the opinion that in the absence of water courses the irrigation of land has not been possible; the lands are capable of being irrigated but it is not possible to irrigate them in the absence of the water courses. Under these circumstances from the indication given under sec. 20a it is obvious that all lands which are capable of being irrigated from a canal and are thus under sec. 3 (6a) of the Irrigation Act lands under the irrigable command of the canal are not necessarily irrigated lands. Under these circumstances from the indication given under sec. 20a it is obvious that all lands which are capable of being irrigated from a canal and are thus under sec. 3 (6a) of the Irrigation Act lands under the irrigable command of the canal are not necessarily irrigated lands. Therefore in each case what the authorities under the Tenancy Act have to consider is not whether the lands are under the irrigable command of a canal or a bandhara or a lift irrigation system constructed by the State Government but whether they are in fact irrigated and for this purpose the concept of assured supply of water to land in question is the test to be applied. It is possible as Mr. Vaishnav for the respondents argued before me that a particular agriculturist or an occupant may not avail himself of the supply of water though the supply is assured to him and in fact for some period the land of that particular agriculturist may be in fact not irrigated. To my mind the test to be applied is not the actual fact of land being irrigated but the test to be applied is whether the land in question is assured of supply of water from a canal. If being assured of the supply of water from a canal whenever the agriculturist wants the supply he does not avail himself of that facility the agriculturist has to thank himself but his land will still be considered irrigated land within the meaning of irrigated land under the Tenancy Act. To my mind the correct test for finding out whether a particular plot of land is irrigated land or not is this:- If an occupant or the agriculturist had so chosen could he have taken water for the land in question from a canal or a bandhara or a lift irrigation system maintained or constructed by the State Government ? If the answer is in the affirmative the land would be deemed to be irrigated land even though that particular agriculturist may not have chosen to avail himself of the opportunity of getting supply of water for his land. ( 6 ) IN view of the fact that the Revenue Tribunal and all other authorities have not applied this test while calculating the irrigated area of the holding of the tenant this Special Civil Application must be allowed. ( 6 ) IN view of the fact that the Revenue Tribunal and all other authorities have not applied this test while calculating the irrigated area of the holding of the tenant this Special Civil Application must be allowed. Since there is an error apparent on the face of the record I allow this Special Civil Application. This was the only point urged before me and Mr. Jani for the petitioner has rested content only with this challenge to the decision of the Tribunal. Rule is made absolute. The matter will now go back to the Tribunal for deciding the matter by taking additional evidence if necessary in the light of what I have stated in the course of this judgment. There will be no order as to costs. .