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2016 DIGILAW 1140 (GUJ)

Bhikhabhai Trikambhai Patel v. State of Gujarat

2016-06-20

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge in Special Civil Application No. 5085/1996 by which the learned Single Judge has dismissed the said Special Civil Application as concurrent orders are passed by the authorities below under the provisions of Gujarat Agricultural Land Ceiling Act, 1960 (hereinafter referred to as "Ceiling Act"), the original petitioner (now the heir and legal representative of the original petitioner) has preferred the present Letters Patent Appeal. 1.1 At the outset it is required to be noted that as such against the order passed by the learned Single Judge the appellant herein preferred the present Letters Patent Appeal. However, vide order dated 28.01.2014, the Division Bench dismissed the present appeal as not maintainable. However, subsequently, in Special Leave Petition before the Hon'ble Supreme Court, the Hon'ble Supreme Court has allowed the said appeal and held that Letters Patent Appeal would be maintainable and therefore, while quashing and setting aside the order of dismissal of Letters Patent Appeal, the Hon'ble Supreme Court has remanded the matter back to this Court and that is how the present appeal is placed on board before this Court. 2. Facts leading to the present Letters Patent Appeal in nut-shell are as under: "2.1. That Form No. 2 was filed by the petitioner under the provisions of Ceiling Act with amendment on 28.06.1976, indicating that he was holding 33 Acre 21 Gunthas of land comprising of survey Nos. 59, 66, 24 and 20 of village Zankharpura, Taluka Sankheda; while 30 Acre of land of Survey No. 59 part was held by divorced wife as per the deed of separation dated 19.10.1970. That the petitioner had shown his wife as separated. That the concerned Mamlatdar & ALT, Sankheda after issuing notice in prescribed form and affording opportunity of hearing declared on 21.01.1981 that the petitioner was holding 39 Acre as surplus land. The petitioner preferred appeal before Dy. Collector, Chhota Udepur who vide his order in Ceiling Appeal No. 16/81 dated 13.07.1981 rejected the said appeal on the ground of limitation. The petitioner thereafter filed revision application being Revision Application No. TEN B.A. 1982/82 wherein the Tribunal passed an order on 27.12.1985 remanding the matter to Mamlatdar & ALT, Dabhoi for affording opportunity of hearing to all the concerned and to decide the matter in accordance with law. The petitioner thereafter filed revision application being Revision Application No. TEN B.A. 1982/82 wherein the Tribunal passed an order on 27.12.1985 remanding the matter to Mamlatdar & ALT, Dabhoi for affording opportunity of hearing to all the concerned and to decide the matter in accordance with law. That the Mamlatdar, Sankheda numbered it as Ceiling Case No. 38/76 (Remand) and vide order dated 15.06.1987 held that as 30 Acres of land out of survey No. 59 of Zankharpura village was shown to be held by divorced wife, petitioner's holding was considered to be only of 39 Acre and 09 Guntha and on that basis withdrew notice in form No. 6. That the Dy. Collector, Chhota Udepur received instruction from concerned Collector for inquiring into veracity of divorce of petitioner and his wife and ultimately Remand Case No. 5/87 vide order dated 20.06.1988 was set aside and the land originally declared surplus by order dated 21.01.1981 was confirmed to be correct. That the said order of Dy. Collector was assailed in Revision Application No. TEN B.A. 645/85 in Gujarat Revenue Tribunal and Gujarat Revenue Tribunal vide order dated 25.02.1993 remanded the matter to the Dy. Collector for passing appropriate order. That the Deputy Collector, Chhota Udepur again conducted the proceeding and by order dated 28.06.1993 in remand case No. 2/93 declared the petitioner to be holding 29 Acre 09 Guntha as surplus land. That the petitioner thereafter filed revision application before Gujarat Revenue Tribunal and Gujarat Revenue Tribunal vide order in TEN B.A. Nos. 690/93 and 766/93 passed order on 25.11.1994 setting aside the order dated 28.06.1993 of Deputy Collector and directed that the matter be decided in accordance with the directions given by the Tribunal in its order dated 25.02.1993. That the Deputy Collector, Chhota Udepur reconsidered the proceeding and his order in Ceiling Case No. 1/95 dated 24.04.1995 and declared that the petitioner is holding 23 Acre 09 Guntha as surplus land. That the matter was carried before the Revenue Tribunal by way of Revision Application No. TNBA/227/1995. That by judgment and order dated 10.12.1996 the Revenue Tribunal dismissed the said Revision Application. 2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Revenue Tribunal dated 10.12.1996 passed in TNBA/227/1995, the original petitioner - original land owner preferred Special Civil Application No. 5085/1996 before this Court. 2.3. That by judgment and order dated 10.12.1996 the Revenue Tribunal dismissed the said Revision Application. 2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Revenue Tribunal dated 10.12.1996 passed in TNBA/227/1995, the original petitioner - original land owner preferred Special Civil Application No. 5085/1996 before this Court. 2.3. Before the learned Single Judge it was contended on behalf of the petitioner that there was a customary divorce between him and his wife and the said customary divorce was acknowledged and recognized even by the Court and therefore, the divorced wife's holding could not be added into the holding of the petitioner so as to come to the conclusion that the petitioner was holding surplus land. 2.4. Considering the provisions of Sections 7 and 8 of the Ceiling Act, by impugned order the learned Single Judge dismissed the said petition confirming the order passed by the authorities below declaring 23 Acre 09 Guntha of land as surplus land under the provisions of the Ceiling Act. 2.5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, original petitioner (now heir and legal representative of the original petitioner) has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent." 3. Shri Tatavam Patel, learned advocate has appeared on behalf of the petitioner. He has reiterated what was submitted before the learned Single Judge. He has vehemently submitted that as there was a customary divorce between the appellant and his wife Jashodaben and even the said customary divorce was recognized by the Court, the holding of his wife Jashodaben could not have been clubbed in the holding of the petitioner. It is submitted that therefore all the authorities below including the learned Single Judge have materially erred in declaring 23 Acre 09 Guntha land as surplus under the provisions of the Ceiling Act. No other submissions have been made. Making above submissions it is requested to admit/allow the present Letters Patent Appeal. 4. Heard Shri Patel, learned advocate appearing on behalf of the appellant at length. We have perused and considered the orders passed by the authorities below including the judgment and order passed by the learned Single Judge. No other submissions have been made. Making above submissions it is requested to admit/allow the present Letters Patent Appeal. 4. Heard Shri Patel, learned advocate appearing on behalf of the appellant at length. We have perused and considered the orders passed by the authorities below including the judgment and order passed by the learned Single Judge. At the outset it is required to be noted that there are concurrent findings recorded by all the authorities below declaring 23 Acre 09 Guntha of land as surplus land under the provisions of the Ceiling Act. That the authorities below have negatived the contention on behalf of the petitioner - land owner that as there was customary divorce between him and his wife Jashodaben and therefore, holding of his wife could not have been added into holding of the original petitioner - land owner. However, it is required to be noted and it is not in dispute that even the so called alleged customary divorce between the original petitioner - land owner and his wife was in the year 1970. Therefore, assuming that the said customary divorce was subsequently accepted by the Court, in that case also the date of divorce can be considered as 19.10.1970. It is not in dispute that the Ceiling Act came into force in the year 1960. Therefore, the holding of the land owner is required to be considered as on the date on which the Ceiling Act came into force. Even as per Sections 7 and 8 of the Ceiling Act, any transfer and/or alienation even by way of family partition between appointed date and the Ceiling Act came into force is required to be ignored. As per Section 8 of the Ceiling Act even such a transfer/alienation/family partition is required to be approved/recognized by the Collector on an application made under Section 8 of the Ceiling Act. In the present case admittedly the claim of the petitioner was on the basis of customary divorce dated 19.10.1970. As per Section 8 of the Ceiling Act even such a transfer/alienation/family partition is required to be approved/recognized by the Collector on an application made under Section 8 of the Ceiling Act. In the present case admittedly the claim of the petitioner was on the basis of customary divorce dated 19.10.1970. Under the circumstances and considering Sections 7 and 8 of the Ceiling Act, the submission on behalf of the original petitioner - original land owner that in view of the customary divorce and/or deed of separation dated 19.10.1970, holding of his wife was required to be considered separately and/or the holding of his divorced wife could not have been clubbed and/or included in the holding of the original land owner cannot be accepted and the same is rightly not accepted by the learned Single Judge as well as all the authorities below. 4.1 We are in complete agreement with the view taken by all the authorities below as well as the learned Single Judge. We see no reason to interfere with the same in exercise of appellate jurisdiction of intra Court appeal under Clause 15 of the Letters Patent. 5. In view of the above and for the reasons stated above, present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.