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1993 DIGILAW 538 (GUJ)

KALYANBHAI NATHUBHAI v. STATE

1993-12-02

A.N.DIVECHA

body1993
A. N. DIVECHA, J. ( 1 ) THE order passed by the Mamlatdar and Agricultural Lands Tribunal (Ceiling) at Viramgam (the First Authority for convenience) on 25th November 1981 in Ceiling Case No. 489 of 1977 as substantially affirmed in appeal by the order passed by the Deputy Collector (Land Reform - Appeals) at Ahmedabad (the Appellate Authority for convenience) on 19th February 1982 in Ceiling Appeal No. 8 of 1982 as further impliedly affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) on 18 January 1984 in Revision Application No. TEN. B A. 1145 of 1982 as further affirmed by it by its decision rendered on 30th September 1987 in Restoration Application No. TEN D. A. 180 of 1985 is under challenge in this petition under Article 227 of the Constitution of India. ( 2 ) THIS litigation has a somewhat chequered history. The petitioner was found holding lands in all admeasuring 54 acres 7 gunthas as on 1st April 1976 The ceiling area fixed for that local area under the Gujarat Agricultural Lands Ceiling Act 1960 (the Act for brief) is 50 acres 25 gunthas. Thereupon the First Authority undertook the necessary inquiry under Section 21 of the Act It came to be registered as Ceiling Case No. 489 of 1977 By his order passed on 25th November 1981 in Ceiling Case No. 489 of 1977 the First Authority came to the conclusion that the petitioners holding was to the tune of 54 acres 7 gunthas and it was in excess of the ceiling area by 3 acres 22 gunthas and declared one parcel of land admeasuring 3 acres 21 gunthas to be surplus. Its copy is at Annexure-A to this petition The aggrieved petitioner carried the matter in appeal before the Appellate Authority by means of his Ceiling Appeal No. 8 of 1982. A copy of the Memo of Appeal is at Annexure-B (part) to this petition By his order passed on 19th February 1982 in the aforesaid appeal the Appellate Authority came to the conclusion that the petitioners holding was to the tune of 52 acres 11 gunthas and it was in excess of the ceiling area by I acre 26 gunthas. A copy of the Memo of Appeal is at Annexure-B (part) to this petition By his order passed on 19th February 1982 in the aforesaid appeal the Appellate Authority came to the conclusion that the petitioners holding was to the tune of 52 acres 11 gunthas and it was in excess of the ceiling area by I acre 26 gunthas. It was however found that since the excess land would be a fragment the petitioner was required to surrender a parcel of land admeasuring 2 acres as surplus. Its copy is at Annexure-B (part) to this petition The aggrieved petitioner thereupon carried the matter in revision before the Tribunal by means of his Revision Application No. TEN. B. A 1145 of 1982. By its decision rendered on 18th January 1984 in the aforesaid revisional application the Tribunal rejected it for default of appearance. Its copy is at Annexure-C to this petition The attempt to get the decision at Annexure-C to this petition set aside and the matter restored to file by means of Restoration Application No. TEN D. A 180 of 1985 did not meet with any success By its decision rendered on 30th September 1987 in the aforesaid restoration application the Tribunal rejected it. Its copy is at Annexure-D to this petition. The aggrieved petitioner thereupon approached this Court by means of one petition under Article 227 of the Constitution of India. It came to be registered as Special Civil Application No. 5726 of 1987. It came to be summarily rejected on 4th November 1987 The petitioner thereafter moved this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the decision at Annexure-C to this petition. By amendment he has annexed the decision at Annexure-D to this petition after adding paragraph 5a in this petition. The petitioner thereafter by amendment added the challenge to be also under Article 226 of the Constitution of India and sought declaration that the impugned Appellate order at Annexure-B (part) to this petition is illegal and invalid. ( 3 ) THE Appellate order at Annexure-B (part) to this petition cannot be sustained in law even for a moment. The Appellate Authority has clearly found that the petitioners holding was in excess of the ceiling area by 1 acre 26 gunthas. ( 3 ) THE Appellate order at Annexure-B (part) to this petition cannot be sustained in law even for a moment. The Appellate Authority has clearly found that the petitioners holding was in excess of the ceiling area by 1 acre 26 gunthas. In his impugned Appellate order the Appellate Authority has further found that the excess land would be a fragment. In that view of the matter the case would be governed by Section 18 (1) (a) read with sub- section (2) of the Act. In that view of the matter the petitioner would be entitled to retain the excess land under the Act. The contrary conclusion reached by the Appellate Authority that since the excess land was a fragment the petitioner was required to surrender the minimum two acres of land will have to be branded as illegal and invalid. ( 4 ) IN view of my aforesaid discussion the Appellate order at Annexure-B (part) to this petition would have to be quashed and set aside. It is however difficult to do this as rightly pointed out by Shri Mehta for the respondents. The Appellate order at Annexure-B (part) to this petition was challenged in revision and the petitioners revisional application came to be rejected on account of default of appearance by the decision at Annexure-C to this petition. The Appellate order at Annexure-B (part) to this petition can thus be said to have merged in the decision at Annexure-C to this petition. The decision at Annexure-C to this petition can be said to have merged in the decision in the restoration application at Annexure-D to this petition. As pointed out hereinabove special Civil Application No. 5726 of 1987 challenging the decision at Annexure-D to this petition has come to be summarily rejected. In that view of the matter the decision at Annexure-D to this petition can be said to have merged in the order passed by this Court on 4th November 1987 Special Civil Application No. 5726 of 1987 summarily rejecting it. Thus the Appellate order at Annexure-B (part) to this petition has come to be affirmed by this Court in Special Civil Application No. 5726 of 1987 which was disposed of on 4th November 1987. It is true that the decision at Annexure-C to this petition was not on merits. Thus the Appellate order at Annexure-B (part) to this petition has come to be affirmed by this Court in Special Civil Application No. 5726 of 1987 which was disposed of on 4th November 1987. It is true that the decision at Annexure-C to this petition was not on merits. The decision at Annexure-D to this petition has merely affirmed the decision at Annexure-C to this petition and it has further been affirmed by this Court by summarily rejecting Special Civil Application No. 5726 of 1987 on 4th November 1987. The question would now arise whether or not this petition inter alia challenging the Appellate order at Annexure-B (part) to this petition can be entertained. ( 5 ) AS pointed out hereinabove the Appellate order at Annexure-B (part) to this petition is ex facie illegal and invalid. It cannot be sustained in law. To quash it or to set it aside in this petition would tantamount to reviewing the order passed by this Court on 4th November 1987 summarily rejecting Special Civil Application No. 5726 of 1987. I am afraid it would not be open to me to exercise such powers in view of the binding ruling of the Supreme Court in the case of Devaruju Pillai vs. Sellayya Pillai reported in AIR 1987 Supreme Court at page 1160. It is true that the aforesaid Supreme Court ruling was rendered in the context of Order 47 Rule 1 of the Code of Civil Procedure 1908 However by analogy the principle laid down in it would be applicable even to writ proceedings. ( 6 ) IT cannot be gainsaid that Article 226 of the Constitution of India is inter alia designed to protect the litigant against the enforcement and implementation of illegal and invalid orders. An order which is ex facie illegal and invalid can certainly be set aside under Article 226 of the Constitution of India. Even at the cost of repetition I reiterate that the impugned Appellate order at Annexure-B (part) to this petition is ex facie illegal and invalid. ( 7 ) I think the complex question arising in this petition requires to be decided by a Division Bench of this Court on the facts and in the circumstances of the case. Even at the cost of repetition I reiterate that the impugned Appellate order at Annexure-B (part) to this petition is ex facie illegal and invalid. ( 7 ) I think the complex question arising in this petition requires to be decided by a Division Bench of this Court on the facts and in the circumstances of the case. 8 The registry is therefore directed to place this matter before the learned Chief Justice for appropriate orders regarding referring the matter to a Division Bench for its hearing and disposal. Case Disposal. .