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1993 DIGILAW 508 (GUJ)

BHIKHABHAI L. PATEL v. STATE

1993-10-26

A.N.DIVECHA

body1993
A. N. DIVECHA, J. ( 1 ) THE order passed by the Mamlatdar and Agricultural Lands Tribunal (Ceiling) at Bharuch (the First Authority for convenience) on 11/04/1983 in Ceiling Case No. 122 of 1981 as affirmed in appeal by the order passed by the Assistant Collector at Bharuch on 24/11/1983 in Ceiling Appeal No. 61 of 1983 as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) on 22/08/1985 in Revision Application No. TEN. B. A. 84 of 1984 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order the First Authority found the holding of the petitioners to be in excess of the ceiling area by 43 acres 31 gunthas and declared the excess land to be surplus vesting in the State Government free from all encumbrances. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioners are the heirs of one Bhikhabhai Lallubhai Patel (the deceased for convenience ). He was found holding agricultural lands in all admeasuring 79 acres 31 gunthas in village Shahpura Taluka District Bharuch (the disputed lands for convenience ). The ceiling area fixed for that local area under the Gujarat Agricultural Lands Ceiling Act 1960 (the Act for brief) is 36 acres. Thereupon the First Authority undertook the necessary inquiry under Section 21 thereof. It appears that twice the case was decided and on both the occasions the matter came back to the First Authority for his fresh decision according to law. It thereupon came to be registered as Ceiling Case No. 122 of 1981. By his order passed on 11/04/1983 in Ceiling Case No. 122 of 1981 the First Authority came to the conclusion that the holding of the deceased was in excess of the ceiling area by 43 acres 31 gunthas and declared the excess land to be surplus vesting in the State Government free from all encumbrances. Its copy is at Annexure-A to this petition. It appears that by that time the deceased had left for his heavenly abode. The present petitioners as the heirs of the deceased thereupon carried the matter in appeal before the Assistant Collector at Bharuch by means of their Ceiling Appeal No. 61 of 1983. Its copy is at Annexure-A to this petition. It appears that by that time the deceased had left for his heavenly abode. The present petitioners as the heirs of the deceased thereupon carried the matter in appeal before the Assistant Collector at Bharuch by means of their Ceiling Appeal No. 61 of 1983. By his order passed on 24/11/1983 in the aforesaid appeal the Assistant Collector at Bharuch rejected it. Its copy is at Annexure- B to this petition. The petitioners thereupon invoked the revisional jurisdiction of the Tribunal by means of their Revision Application No. TEN. B. A. 84 of 1984. It met with the same fate. By its decision rendered on 22/08/1985 the Tribunal rejected it. Its copy is at Annexure-C to this petition. The petitioners have thereupon invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure- A to this petition as affirmed in appeal and in revision by the appellate order and the impugned decision at Annexures-B and C respectively to this petition. ( 3 ) IT transpires from the record that the wife of the deceased was reciding separately from her husband and she was holding lands in all admeasuring 25 acres 4 gunthas given to her for her maintenance. It transpires from the record that she was not residing with her husband on 1/04/1976. The First Authority and the appellate Authority below have given no importance to separate residence of the wife from her husband on the ground that there was no dissolution of marriage between the spouses. The Tribunal however expressed its doubt about the joint residence of the spouses in view of the inclusion of her name in her husbands Ration Card. What however weighed with the Tribunal was the fact that there was no end of the matrimonial tie between the spouses. ( 4 ) SHRI Patel for the petitioners has urged that the petitioners had brought on record one Agreement of 30/11/1966 executed between the spouses showing separate residence of the wife from her husband much prior there to and her holding of separate lands for her maintenance. In view of this Agreement on record according to Shri Patel for the petitioners there was no escape from the conclusion that she was residing separately from her husband much prior to 30/11/1966. In view of this Agreement on record according to Shri Patel for the petitioners there was no escape from the conclusion that she was residing separately from her husband much prior to 30/11/1966. As against this Shri Mehta for the respondent has urged that the Tribunal has disbelieved the case to the effect that the wife was residing separately from her husband. According to Shri Mehta for the respondent this would constitute a finding of fact and it need not be upset by this Court in exercise of its limited powers under Article 227 of the Constitution of India. ( 5 ) IT may be noted at this stage that in the inquiry proceedings under Section 21 of the Act before the First Authority the deceased and his wife both were examined. Both unequivocally declared that they were residing separately from each other. The aforesaid Agreement executed between the parties on 30/11/1966 was also on record. Its copy is at Annexure-D to this petition. It transpires from the record that the husband and the wife separated from their matrimonial home prior to the date of the Agreement though the matrimonial tie between the two did not come to be dissolved. It is true that the Ration Card of the deceased included her name as also of her two children. The inclusion of her name and her two children in the Ration Card cannot be said to be the conclusive piece of evidence qua the joint residence of the spouses. At the most it would raise a presumption about Joint residence of the persons mentioned in the Ration Card. That presumption is certainly rebuttable. The rebuttable evidence on record was in the form of the Agreement at Annexure- D to this petition and the deposition of both the spouses recorded before the First Authority in the inquiry proceedings under Section 21 of the Act. In view of this evidence on record there was no escape from the conclusion that the spouses separated from their joint residence in their matrimonial home. The wife had started residing separately from her husband. It may be mentioned that in its impugned decision at Annexure-C to this petition the Tribulal has not found as a matter of fact that spouses were residing together. It has merely expressed its doubt about the case of separate residence set up by the parties. The wife had started residing separately from her husband. It may be mentioned that in its impugned decision at Annexure-C to this petition the Tribulal has not found as a matter of fact that spouses were residing together. It has merely expressed its doubt about the case of separate residence set up by the parties. It cannot be treated as a finding of fact. Even otherwise it would be a perverse finding of fact if it has to be treated as such. A finding of fact can be said to be perverse inter alia if it is such as no reasonable person would record it on the basis of the material on record. In view of the aforesaid evidence on record in the inquiry proceedings before the first authority under Section 21 of the Act no other conclusion is possible except that the deceased and his wife resided separately from each other much prior to 30/11/1966. No contrary conclusion on this material on record can be reached by any reasonable person. ( 6 ) THE intent and the scope of Section 6 (2) of the Act have been considered by this Court in its unreported ruling in Special Civil Application No. 1432 of 1965 decided on 9/01/1970. It has been held therein that the members whose individual holdings have to be clubbed or grouped together under Section 6 (2) of the Act have to be residing together or sharing the same roof. It has been held that if a person as member of the family resided separately from the family and away from the house such person would not he treated as a member of the family for the purposes of Section 6 (2) of the Act. The aforesaid unreported ruling of this Court is binding to me Sitting as a single Judge. Even otherwise I am in respectful agreement therewith. It is on all fours applicable in the present case. ( 7 ) IN the present case the wile was found separately residing from her husband as on 1/04/1976. She was found to be holding separately from her deceased husband agricultural lands in all admeasuring 25 acres 4 gunthas. Her holding could not he clubbed or grouped with that of the deceased for the purposes of the Act. ( 7 ) IN the present case the wile was found separately residing from her husband as on 1/04/1976. She was found to be holding separately from her deceased husband agricultural lands in all admeasuring 25 acres 4 gunthas. Her holding could not he clubbed or grouped with that of the deceased for the purposes of the Act. The holding of the deceased as on 1/04/1976 was found to he 79 acres 31 gunthas including her holding to the tune of 25 acres 4 gunthas. That conclusion could not certainly be upheld and the holding of the deceased will have to be taken as 54 acres 27 gunthas. The ceiling area fixed for that local area is 36 acres. In that view of the matter the holding of the petitioners is excess of the ceiling area would he to the tune of 18 acres 27 gunthas. The matter will have to be sent back to the First Authority for his determination as to which lands of the deceased should be declared surplus in the light of this judgment. ( 8 ) IN view of my aforesaid discussion I am of the opinion that the impugned order at Annexure-A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition as further affirmed in revision by the impugned decision at Annexure-C to this petition cannot be sustained in law in toto. It has to be quashed and set aside ( 9 ) IN the result this petition is accepted. The order passed by the Mamlatdar and Agricultural Lands Tribunal (Ceiling) at Bharuch on 11/04/1983 in Ceiling case No 122 of 1981 at Annexure-A to this petition as affirmed in appeal by the appellate order passed by the Assistant Collector at Bharuch on 24/11/1983 in Ceiling appeal No 61 of 1983 at Annexure-B to this petition as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 2/08/1985 in Revision Application No. TEN. B. A. 84 of 1984 at Annexure-C to this petition is quashed and set aside. B. A. 84 of 1984 at Annexure-C to this petition is quashed and set aside. The matter will have to be remanded to the First Authority for restoration of Ceiling Case No. 122 of 1981 to file and for determining as to which lands of the deceased should be declared surplus in the light of Section 18 of the Act and in the light of this judgment of mine Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .