Surendraprasad Bhogilal Trivedi v. STATE — 1993 DIGILAW 373 (GUJ)

D. G. KARIA, J. ( 1 ) RAMABEN, widow of Surendraprasad Triveddi and her three minor children have challenged the decision of the Gujarat Revenue Tribunal rendered on august 17, 1984, in Revision Application No. TEN. B. A. 37/83. By the impugned decision, the learned Member of the Gujarat Revenue Tribunal dismissed the revision application of the petitioners herein and confirmed the judgments of the Courts below holding that the petitioners held excess land to the extent of A. 13-39 gunthas. ( 2 ) THE facts giving rise to the petition are in narrow compass and not in dispute. Deceased Surendraprasad Bhogilal Trivedi held the agricultural Jirayat land to the extent of A43-26 gunthas at village Amala, Taluka Padra of Baroda District Necessary forms pursuant to the provisions of the Gujarat Agricultural Lands Ceiling Act, 1960 (for short, "the Ceiling Act") were filled in showing holding by the predecessor-in-title of the petitioners as on April 1st, 1976. Surendraprasad Bhogilal Trivedi died on September 7th, 1977. Notice was thereafter issued to the widow of the deceased Surendraprasad in respect of the aforesaid form showing the holding of the land by the deceased. Petitioner no. 1 gave the evidence on January 13th, 1978 and February 4th, 1980, justifying, inter alia, that she had exchanged the lands of Survey Nos. 186,58,59,60,468,1278 and 1279, in all admeasuring A6-17 Gunthas, and in lieu thereof she received a land admeasuring al-05 Gunthas on August 17th, 1970. It is also the case of the petitioners that by an agreement to sell dated June 23, 1970, lands of survey Nos. 1242, 1173/9 and 1320 admeasuring totally A5-19 gunthas were sold and transferred to Patel Chhagan tribhovandas of village Amala. The petitioners, therefore, claimed that the land transferred by way of exchange (A6-17 gunthas minus Al-5 gunthas A5-12 gunthas) and the land transferred on June 23,1970 by way of agreement to sell should be reduced from the total holding of the petitioners for the purpose of computing the excess holding of the land to the ceiling area under the provisions of the Ceiling Act. ( 3 ) MAMLATDAR and A. L. T. (Ceiling), Karjan at Padra, by his judgment dated september 25th, 1981, in Ceiling Case No. 32/76, held that the petitioners held surplus land to the extent of A13-39 gunthas. ( 3 ) MAMLATDAR and A. L. T. (Ceiling), Karjan at Padra, by his judgment dated september 25th, 1981, in Ceiling Case No. 32/76, held that the petitioners held surplus land to the extent of A13-39 gunthas. The Mamlatdar and A. L. T. categorically held that during the period from January 24, 1971 to March 31st, 1976, the petitioners had not transferred or alienated any land from their holding. The petitioners, being aggrieved by the said order of the Mamlatdar, preferred Ceiling Appeal No. 4/82 before the Assistant collector at Vadodara, who, by his judgment and order dated November 18th, 1982, dismissed the appeal. The Appellate Authority, i. e. the Assistant Collector, held that the petitioners have transferred the land by way of exchange and agreement to sell, but no declaration under section 8 (2) of the Ceiling Act was obtained and as such the petitioners were not entitled to deduct the said land of transfers from the total holding of the petitioners. ( 4 ) THE petitioners, being aggrieved by the aforesaid judgment of the Appellate authority, preferred Revision Application under section 38 of the Ceiling Act before the gujarat Revenue Tribunal at Ahmedabad. The learned Member of the Gujarat Revenue tribunal, by his impugned judgment, dismissed the revision application. It is against this judgment that the petitioners have approached this Court by the present petition under article 227 of the Constitution of India. ( 5 ) MR. J. M. Patel, learned Advocate appearing for the petitioners, has contended that the Tribunal and the Courts below committed an error of law in misreading the provisions of section 8 of the Ceiling Act. Section 8 of the Act provides that the agricultural land transferred after 24th January, 1971 but before the specified date (1-4-1976) by way of sale, gift, mortgage, exchange, lease, surrender or otherwise or partitioned any land, then notwithstanding anything contained in any law for the time being in force, such transfer or partition shall be deemed to have been made in anticipation in order to defeat the object of the Ceiling Act, unless it is proved to the contrary. It is clear and categorical finding of the mamlatdar and A. L. T. that the petitioners have not transferred any land during the period from 24th January 1971 to 31st March 197 (5. It is clear and categorical finding of the mamlatdar and A. L. T. that the petitioners have not transferred any land during the period from 24th January 1971 to 31st March 197 (5. The agreement of exchange at Annexure "b" clearly shows that the lands were transferred by way of exchange on August 17th, 1970. The lands admeasuring A5-19 Gunthas were also transferred by way of agreement to sell oh June 23rd, 1970 pursuant to the document at Annexure "c". When the lands were not transferred or alienated during the period from 24th January 1971 to 1st April 1976, the provisions of section 8 of the Ceiling Act cannot be pressed into service. The said lands by way of exchange in sale were transferred prior to aforesaid two dates, inasmuch as they were transferred in the year 1970. The authorities below and the tribunal, therefore, committed error of law in misreading section 8 of the Ceiling Act, inasmuch as it was not necessary for the petitioners to seek any declaration to the effect that the transfers of the lands were not made in anticipation in order to defeat the object of the Ceiling Act, for the reason that the aforesaid lands admeasuring totally A10- 31 gunthas were transferred by way of exchange and sale in the year 1970. The petitioners, therefore, did not hold the said land admeasuring A10-31 gunthas (A5-12 gunthas transferred by way of exchange and A5-19 gunthas transferred by way of agreement to sell) on 1. 4. 1976 and the said land cannot be said to be holding of the petitioners. In the facts of the case, provisions of section 8 of the Ceiling Act cannot be attracted. ( 6 ) MR. U. R. Bhatt, learned Assistant Government Pleader, contended that the petitioners did not produce or prove the agreements of exchange and the agreements of sale dated 17. 8. 1970 and 23. 8. 1970, respectively, before the Mamlatdar and A. L. T. I find no substance in this submission of Mr. Bhatt for the reasons that the Mamlatdar and a. L. T. has clearly observed that the petitioners did not transfer any of the lands during the period from 24th January 1971 to 31st March, 1976. 8. 1970 and 23. 8. 1970, respectively, before the Mamlatdar and A. L. T. I find no substance in this submission of Mr. Bhatt for the reasons that the Mamlatdar and a. L. T. has clearly observed that the petitioners did not transfer any of the lands during the period from 24th January 1971 to 31st March, 1976. It was also contended before the appellate authority that the land transferred by the petitioners by way of exchange and sale should not be considered in the holdings of the petitioners and the same submission of the petitioners was rejected by the appellate authority holding that the necessary declaration under section 8 (2) of the Act was not obtained by the petitioners. This point is, therefore, not raised for the first time by the petitioners. ( 7 ) IT is not in dispute that the petitioners total holding of the land is to the extent of a43-26 gunthas. In view of the aforesaid facts, the petitioners are entitled to get benefit of the reduction of the land to the tune of A10-31 Gunthas from their total holding and thus, the total holding of the petitioners would be A31-35 gunthas. The ceiling prescribed in this case is 30 Acres. On the computation, the petitioners will, therefore, hold the land admeasuring A2-35 gunthas in excess to the ceiling area. ( 8 ) THIS Court has interpreted the word "transfer" with reference to the provisions of section 8 of the Ceiling Act, in the case of Lajjashanker Keshavji Joshi vs. State of gujarat, 26 (2) G. L. R. page 658. It is held in that case that section 8 (1) makes it clear that the Legislature wanted to include within the meaning word transfer agreement to sell of land with possession. It is held in that case that section 8 (1) makes it clear that the Legislature wanted to include within the meaning word transfer agreement to sell of land with possession. The said proviso states that where any transfer or partition of land is effected by a document required by law to be registered which however is not registered during the period specified therein, then unless the Court is satisfied on merits of the case that the document is bona fide document executed in fact before 24th-January 1971 and that it is not ante-dated as a result of collusion between the parties otherwise, in order to defeat the object of the amending Act of 1972, the Court shall not pass a decree in the suit filed for the grant of specific relief on the basis of any such document. It is further held that this provision, without any doubt includes that if there is any contract for sale, then also the Legislature considered it to be a transfer even though the said document was required to be registered. The Legislature knew that there cannot be any transfer of any immovable property without there being registered document. Yet, the Legislature used the word transfer or partition of the land effected by a document required by law to be registered which is however not registered. This means that the Legislature thought that even if any person agrees to transfer the land by an unregistered document, even that type of transfer would also be included with in the meaning of word transfer within the meaning of section 8 of the Ceiling Act. The word transfer is not defined in the agricultural Lands Ceiling Act. The term transfer is of wellknown legal significance under the Transfer of Property Act, and as such no other meaning could be given to the said word. However, when the Legislature has used it in a proper or wider sense, the word transfer would include even agreement to sell wherein the possession of the land is parted in favour of the transferee. In this view of the matter, the aforesaid two transfers made in the year 1970 by the petitioners cannot be said to be hit by section 8 of the ceiling Act. ( 9 ) IN view of the aforesaid position, the petition is partly allowed, modifying the impugned judgments. In this view of the matter, the aforesaid two transfers made in the year 1970 by the petitioners cannot be said to be hit by section 8 of the ceiling Act. ( 9 ) IN view of the aforesaid position, the petition is partly allowed, modifying the impugned judgments. The petitioners are held holding land to the extent of A. 2-35 gunthas in excess of the ceiling area, instead of A13-39 gunthas. The Mamlatdar and a. L. T. , Karjan, is directed to initiate necessary proceedings to take possession of the aforesaid excess land to the extent of A2- 35 gunthas, after allowing the petitioners to exercise their right of choice of the land. Rule is made absolute to the aforesaid extent. In the facts of the case, there shall be no order as to costs. .