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1998 DIGILAW 589 (GUJ)

Ambelal Kasanji Patel v. State of Gujarat

1998-09-09

A.M.KAPADIA, C.K.THAKKER

body1998
JUDGMENT : Admitted. Mr. M.A. Bukhari, AGP appears and waives service of notice of admission on behalf of the respondents. In the facts and circumstances of the case, the matter is taken up to day for final hearing. This appeal is filed against the order passed in Misc. Civil Application No.263 of 1996 decided by the learned Single Judge on 19th March 1996 and order passed by the learned Single Judge in the main matter i.e. Special Civil Application No. 1309 of 1984 decided on July 31, 1991. 2. The case of the appellants was that they were holding land admeasuring 237 Acres and 27.5 Vighas in village Ghej, Taluka Chikhali, Dist. Valsad. The Mamlatdar & Agricultural Lands Tribunal, Chikhli held that the appellants were not holding surplus land under the Agricultural Lands Ceiling Act, 1960 (hereinafter referred as "the Act"). That order was taken in revision by the Deputy Collector, who interfered with the order passed by the Mamlatdar. According to the Mamlatdar, the appellants were entitled to five units whereas according to the Deputy Collector, the appellants were entitled to only three units. The Deputy Collector after recording a finding that the appellants were entitled to three units, remanded the matter to the Mamlatdar to decide the same in accordance with law. The said order was confirmed by the Revenue Tribunal in Revision and also by the learned single Judge in Special Civil Application. Even Review Application was also rejected. 3. Mr.Vasavada, learned counsel for the appellant contended that the appellants were entitled to five units. For that, reliance was placed on the fact that original owner was Karsanbhai Bhikhabhai Patel. He died on August 19, 1957 leaving behind him, his widow Kikiben and two sons, namely, Thakorbhai Karsanbhai Patel and Ambelal Karsanbhai Patel. Thakorbhai Karsanbhai Patel was having two sons - Dilipkumar and Ashokkumar. It is the case of the appellant that both Dilipkumar and Ashokkumar were major and hence each of them were also entitled to one independent unit. Kikiben, widow of deceased Karsanbhai was entitled to one unit. Thakorbhai and Amberam, sons of deceased Karsanbhai were entitled to one unit each and Dilipkumar and Ashokkumar two sons of Thakorbhai were also entitled to one unit each. The Mamlatdar was, therefore, right in giving five units. Kikiben, widow of deceased Karsanbhai was entitled to one unit. Thakorbhai and Amberam, sons of deceased Karsanbhai were entitled to one unit each and Dilipkumar and Ashokkumar two sons of Thakorbhai were also entitled to one unit each. The Mamlatdar was, therefore, right in giving five units. Mr.Vasavada alternatively submitted that even if the said finding was not in consonance with law and the Deputy Collector was of the view that the matter required remand, at the most he ought to have remanded the matter in its entirity, without recording a finding that the appellants were entitled to only three units. It was also submitted that grass land was required to be deducted. Thus, the Deputy Collector committed an error of law which was affirmed by the tribunal as well as by this Court. 4. Mr.Bukhari, learned Assistant Government Pleader, on the other hand supported the order passed by the authorities. He submitted that the Deputy Collector recorded a finding which was confirmed by the Tribunal and Special Civil Application as well as MCA were also dismissed and no ground has been made out to interfere with the said order. 5. In the facts and circumstances of the case, in our opinion when the Mamlatdar held that the appellants were entitled to five units and the Deputy Collector was of the view that they were entitled to only three units on the ground that the name of two sons were not entered in the records of rights, it was incumbent on his part without recording a finding and concluding the issues, he ought to have directed the Mamlatdar to consider the facts and circumstances and to come to a conclusion. 6. To that extent, in our opinion, the contention raised by Mr.Vasavada deserves acceptance and is accordingly accepted. 7. In the result, the appeal is partly allowed. The order passed by the Deputy Collector remanding the matter to the Mamlatdar is not disturbed. Regarding the finding that the appellants were entitled only three units is hereby set aside. It is also held that in view of the fact that the finding was recorded by the Deputy Collector that the appellant was not entitled to five units obviously the finding recorded by the Mamlatdar that they were entitled to five units also does not stand. It is also held that in view of the fact that the finding was recorded by the Deputy Collector that the appellant was not entitled to five units obviously the finding recorded by the Mamlatdar that they were entitled to five units also does not stand. The Mamlatdar & Agricultural Lands Tribunal, Chikhali will now decide the matter afresh in accordance with law on its own merits. Since the matter is old the Mamlatdar & ALT (Ceiling), Chikhali will give due priority to the matter and will decide the same as expeditiously as possible preferably before 31st March 1999.