KIKIBEN WD/O CHHAGANBHAI BHIKHABHAI PATEL v. STATE OF GUJARAT
2018-02-22
R.SUBHASH REDDY, VIPUL M.PANCHOLI
body2018
DigiLaw.ai
JUDGMENT : VIPUL M. PANCHOLI, J. 1. By way of this appeal which is filed under Clause-15 of the Letters Patent, the appellants-original petitioners have challenged the oral judgment dated 03.08.2015, rendered by the learned Single Judge, in Special Civil Application No.747 of 2000 by which the learned Single Judge has dismissed the petition. 2. The factual matrix of the case is as under: 2.1 It is a case of the petitioners that petitioner No.1 Kikiben is the widow of Chhaganbhai Bhikhabhai Patel, who died on 16.09.1975 whereas petitioner Nos.2 to 4 are the daughters of deceased Chhaganbhai. Said Chhaganbhai was the son of Bhikhabhai, who is the original land holder and occupant of different parcels of agricultural lands situated at Village: Navagam and Kholvad. The wife of Bhikhabhai had already expired much before the death of Chhaganbhai. 2.2 It is stated that Bhikhabhai Haribhai, grandfather of petitioner Nos.2 to 7, declared the holding of agricultural lands by filing prescribed form under the provisions of the Gujarat Agricultural Land Ceiling Act, 1960 (hereinafter referred to as “the Act”) and the Rules framed thereunder. In the said form, the declarant shown eight family members. The said form was processed before the Mamlatdar and ALT, Kamrej, under Ceiling Case No. 1808 of 1980. The Mamlatdar and ALT passed an order dated 07.02.1981 and held that Bhikhabhai was holding Acre 9 – 08 Gunthas (Jirayat equivalent area Acres 18 – 16 Gunthas) as excess land than the ceiling limit. The said order was taken into suomotu revision by the Deputy Collector, who remanded the matter back to the Mamlatdar and ALT. Thereafter, the Mamlatdar and ALT once again passed an order, against which the appeal came to be filed by Bhikhbhai which was dismissed and, therefore, the revision was also filed by Bhikhabhai before the Gujarat Revenue Tribunal (GRT). The GRT passed an order on 22.09.1983 and remanded the matter back to the Mamlatdar and ALT, Kamrej. In the meantime, on 12.07.1983, Bhikhabhai died, therefore, the petitioners appeared before the concerned authority and pointed out that the petitioners are not holding any excess land. Notice was, therefore, withdrawn by the Mamlatdar and ALT. 2.3 Thereafter, the Deputy Collector exercised suomotu revisional powers in Revision Case No.197 of 1981. Against which, once again the petitioners preferred Revision Application before the GRT. The said Revision Application was partly allowed by an order dated 13.09.1991.
Notice was, therefore, withdrawn by the Mamlatdar and ALT. 2.3 Thereafter, the Deputy Collector exercised suomotu revisional powers in Revision Case No.197 of 1981. Against which, once again the petitioners preferred Revision Application before the GRT. The said Revision Application was partly allowed by an order dated 13.09.1991. The Mamlatdar and ALT thereafter fixed the hearing of the remanded proceedings. The petitioners submitted written arguments and, thereafter, the Mamlatdar and ALT passed an order dated 25.11.1997 in Ceiling Case No. 2224 of 1980 and held that the petitioners are holding Acre 13 – 07 Gunthas as the surplus land. Against the said order, once again the appeal came to be filed by the petitioners before the Deputy Collector. The said appeal was dismissed by the Deputy Collector by order dated 18.06.1998, against which the petitioners preferred Revision Application No.112 of 1998 before the GRT. The GRT rejected the said application by an order dated 05.11.1999. The petitioners, therefore, filed captioned petition in which the petitioners prayed for the following relief’s : “(b) to quash and set aside the judgment and order dated 5-11-1999 rendered by the learned Member of GRT in Revision Application No. TENB. S.112/98 (Annexure-E) declaring the same to be illegal, improper, erroneous and against the provisions of the Act and accordingly also quash and set aside the impugned order dated 25111997 passed by the learned Mamlatdar and ALT, Choryasi in Ceiling Case No.2224/80 (Annexure-B) and also his order dated 18-6-1998 passed by the learned Deputy Collector, Olpad Prant, Surat in Ceiling Appeal No. 17/97 (Annexure-C); (c) to stay the execution, implementation and operation of the impugned judgment and order dated 5-11-1999 passed by the learned member of GRT (Annexure-E) in Revision Application No. TENB. S.112/98 and also accordingly, stay the execution, implementation and operation of the impugned orders dated 25-11-1997 (Annexure-B) and 18-6-1998 (Annexure-C) passed by the learned Mamlatdar and ALT, Choryasi and learned Deputy Collector, Olpad Prant, Surat, respectively, pending the hearing and final disposal of this petition.” 2.4 The learned Single Judge by impugned order dated 03.08.2015 dismissed the petition and, therefore, the petitioners appellants have filed the present appeal. 3. Heard learned advocate Mr. Jitendra M. Patel appearing for the appellants petitioners and learned Assistant Government Pleader Mr. K.M. Antani for the respondents. 4.
3. Heard learned advocate Mr. Jitendra M. Patel appearing for the appellants petitioners and learned Assistant Government Pleader Mr. K.M. Antani for the respondents. 4. Learned advocate for the appellants mainly contended that the family of the appellants was holding only Acre 21 – 34 Gunthas as perennially irrigated land and increased the area of the land as 49 Acres. The ceiling limit being 30 Acres, the respondent authority has declared Acre 13 – 07 Gunthas as surplus land. While considering the same, the respondent authority has placed reliance upon the Irrigation Certificate issued by the Canal Officer. However, the said Canal Officer was not examined by the respondent authority. Hence, in absence of any evidence, the said certificate is not proved. At this stage, learned advocate has placed reliance upon the decision rendered by the learned Single Judge of this Court in the case of Amratlal Bhikhabhai Patel Versus State of Gujarat reported in 1994(1) GLR 637 , wherein this Court has held that the certificate issued by the Canal Officer is a conclusive piece of evidence. Thus, it is contended that unless and until, the person who has issued the certificate is examined and cross-examined, such certificate cannot be proved and same cannot be relied upon. He, therefore, urged that the order passed by the respondent authority as well as the learned Single Judge be set aside. 4.1 Learned advocate Mr. Patel would thereafter contend that in the family of the appellants, there are eight members including the widow of predeceased son and three sons and three daughters of predeceased son, who were minor as on 01.04.1976. Thus, along with the minor sons, minor daughters are also entitled to get 1/5th more units. At this stage, learned advocate has referred to the provisions contained in Section 6(3B) of the Act as well as the decision rendered by the Honourable Supreme Court in the case of State of Gujarat Vs. Jat Laxmanji Talasji reported in AIR 1988 SC 825 . 4.2 In view of the provisions contained in Section 6(3B) of the Act as well as the aforesaid decision rendered by the Honourable Supreme Court, learned advocate submits that the order passed by the respondent authorities as well as the learned Single Judge be set aside as they have not properly appreciated the aforesaid legal position. 4.3 Learned advocate Mr.
4.2 In view of the provisions contained in Section 6(3B) of the Act as well as the aforesaid decision rendered by the Honourable Supreme Court, learned advocate submits that the order passed by the respondent authorities as well as the learned Single Judge be set aside as they have not properly appreciated the aforesaid legal position. 4.3 Learned advocate Mr. Patel has lastly contended that the order passed by the learned Single Judge is required to be set aside only on the ground that the learned Single Judge has not recorded any reasons while dismissing the petition. He submits that while passing an order, it was incumbent upon the learned Single Judge to assign reasons for not entertaining the petition. In support of the said contention, the learned advocate has placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Versus Shukla and Brothers reported in 2010(4) SCC 785 . 4.4 Learned advocate Mr. Patel has, therefore, urged that the order passed by the respondent authorities as well as the learned Single Judge be set aside and the present appeal be allowed. 5. On the other hand, learned Assistant Government Pleader Mr. K.M. Antani has referred the orders passed by the respondent authorities, GRT as well as the learned Single Judge and contended that in the first and second round of litigation, the appellants have not disputed the Canal Certificate issued by the competent officer nor any contention was raised disputing such certificate and, therefore, it is not proper on the part of the appellants to contend at a belated stage that the Canal Certificate was not properly issued by the concerned officer and the said certificate was not proved as alleged by the appellants. 5.1 Learned Assistant Government Pleader thereafter submits that one Bhikhabhai Haribhai Patel was the owner in occupation of various parcels of land at different villages. He submitted the details in the prescribed form. At that time, wife Kankuben was not alive. Bhikhabhai was having one son, namely, Chhaganbhai who died on 16.09.1975. Bhikhabhai was also having one daughter, namely, Savitaben. It is submitted that on the prescribed date i.e. 01.04.1976, Chhaganbhai left behind him his widow, namely Kikiben and three minor sons and three minor daughters.
At that time, wife Kankuben was not alive. Bhikhabhai was having one son, namely, Chhaganbhai who died on 16.09.1975. Bhikhabhai was also having one daughter, namely, Savitaben. It is submitted that on the prescribed date i.e. 01.04.1976, Chhaganbhai left behind him his widow, namely Kikiben and three minor sons and three minor daughters. 5.2 At this stage, learned Assistant Government Pleader has referred the provisions contained in Section 6(3B) of the Act and submitted that in the facts of the present case, family of the appellants is not covered by the said provision. Minor sons along with minor daughters are not entitled to get 1/5th more units as contended by the learned advocate for the appellants. 5.3 Learned Assistant Government Pleader further contends that the decision rendered by the Honourable Supreme Court in the case of State of Gujarat Vs. Jat Laxmanji Talasji (supra) is also not applicable in the facts of the present case. He, therefore, requested that this appeal may be dismissed. 6. We have heard learned advocates appearing for the parties. We have also gone through the material produced on record. 7. From the record, it has emerged that one Bhikhabhai Haribhai Patel, grandfather of appellant Nos. 2 to 7, declared the holding of agricultural lands by filing prescribed form under the provisions of the Act on 28.06.1976. The pedigree of Bhikhabhai Haribhai Patel is as under: Pedigree Bhikhabhai Haribhai Pate (Died on 12.02.1983) Kankuben (wife) (since deceased) Chhaganbhai (son) (Died on 16.09.1975) Kikiben (wife) Savitaben (daughter) Arvindbhai (son) Anilbhai (son) Vasuben (daughter) Ramilaben (daughter) Sudhirbhai (son) Jyotsnaben (daughter) 8. From the aforesaid details, it transpires that before the prescribed form was submitted by the declarant Bhikhabhai Haribhai Patel, his son Chhaganbhai has expired on 16.09.1975. Thus, at that time, widow of predeceased son, three minor sons and three minor daughters of predeceased son Chhaganbhai were alive. Thus, appellant No.1 is the widow of predeceased son whereas appellant Nos. 2 to 7 are grandsons and granddaughters of the declarant. 9.
Thus, at that time, widow of predeceased son, three minor sons and three minor daughters of predeceased son Chhaganbhai were alive. Thus, appellant No.1 is the widow of predeceased son whereas appellant Nos. 2 to 7 are grandsons and granddaughters of the declarant. 9. At this stage, we would like to refer the provisions contained in Section 6(3B) of the Act, which provides as under : "6(3B) Where a family or a joint family consists of more than five members comprising a person and other members belonging to all or any of the following categories, namely: (i) minor son, (ii) widow of a predeceased son, (iii) minor son or unmarried daughter of a predeceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area” 10. From the aforesaid facts as discussed hereinabove, it is clear that appellant No.1 is the widow of predeceased son of the declarant whereas appellant Nos.2 to 7 are grandsons and granddaughters of the declarant, hence, appellant Nos. 2 to 7 are not covered under Clause-(i) or Clause-(iii) of Section 6(3B) of the Act. As per Clause-(iii) of Section 6(3B) of the Act, minor son or unmarried daughter of a predeceased son where his or her mother is dead are entitled to hold land in excess of the ceiling area to the extent of 1/5th of the ceiling area for each member in excess of five. In the present case, the mother of minor sons and unmarried daughter of predeceased son of declarant is alive. Further, appellant Nos.2 to 7 are not minor sons or daughters of the declarant but they are grandsons and granddaughters of the declarant as stated hereinabove. 11. In the case of State of Gujarat Vs. Jat Laxmanji Talasji (supra), the family of the land holder was consisting of the land holder himself, his wife, his three minor sons and three minor daughters and, therefore, the Honourable Supreme Court has held that the provisions of Section 6(3B) of the Act are attracted.
11. In the case of State of Gujarat Vs. Jat Laxmanji Talasji (supra), the family of the land holder was consisting of the land holder himself, his wife, his three minor sons and three minor daughters and, therefore, the Honourable Supreme Court has held that the provisions of Section 6(3B) of the Act are attracted. The Honourable Supreme Court has observed and held in Paragraphs-8 and 9 as under : “8. Having regard to this definition it can be safely concluded that the landholder, his wife and his offspring consisting of three minor sons and three minor daughters would certainly constitute a family even if the mother of the land holder is excluded from consideration. Thus in any view the family of the land holder consisted of 8 members including himself, his wife, three minor sons and three minor daughters. The Tribunal was therefore clearly in error in taking the view that the family consisted of not more than 5 members. Learned counsel for the appellant however contended that in applying the test whether or not the family consisted of 5 members regard must be had only to the members of the family belonging to the specified category namely minor sons in so far as the composition of the family of the land holder in the present case is concerned. In other words the contention is that the land holder, his wife and his three minor sons are the only five persons of the family for the purposes of Section 6(3B). In our opinion there is no warrant for reading Section 6(3B) in this artificial and truncated manner. On a plain reading, Section 6(3B) is attracted where a family consists of more than 5 members "comprising a person and other members belonging to all or any one of the following categories viz. (i) minor son ....." In the present case the family of the land holder consists of more than 5 members. The family also includes persons of one of the specified categories viz. the minor sons. Thus, all the ingredients of Section 6(3B) are satisfied. In order to claim benefit of Section 6(3B) the test which must be satisfied is a two fold test. First, whether the claimant’s family consists of more than five persons. In the present case the answer to this test is in the affirmative.
the minor sons. Thus, all the ingredients of Section 6(3B) are satisfied. In order to claim benefit of Section 6(3B) the test which must be satisfied is a two fold test. First, whether the claimant’s family consists of more than five persons. In the present case the answer to this test is in the affirmative. The second test that is required to be answered in favour of the person who claims the benefit of Section 6(3B) is that such family must also comprise of one individual and other members besides himself who must belong to all or any of the three specified categories. This test is also answered in favour of the respondent inasmuch as the family does comprise of the respondent and other members and from out of the other members, three belong to one of the specified categories viz. ’minor son’. In other words access to Section 6(3B) is barred by two doors. In order to secure entry the family must consist of more than 5 persons. If there are more than 5 persons including the land holder himself, the first door will be opened and the land holder will be entitled to have an access provided the second door does not bar his entry inside the beneficial area. The second door will also be opened provided that some of the other members meaning thereby members other than individual land holder belong to one of the three categories specified in the section. The second door would be opened provided he has got minor sons. Admittedly, the respondent has three minor sons. Therefore both the doors which bar the access of the land holder to the benevolent provisions are opened. It is not possible to accede to the submission that in ascertaining whether or not the precondition is satisfied only the members of the specified category should be taken into account. For, to do so would be to kill the letter as well as the spirit of the concerned provision. We are therefore not prepared to uphold the plea of the appellant state that the High Court has not correctly interpreted the relevant provision in the case giving rise to the present appeal. 9. Under the circumstances the appeal deserves to fail.
We are therefore not prepared to uphold the plea of the appellant state that the High Court has not correctly interpreted the relevant provision in the case giving rise to the present appeal. 9. Under the circumstances the appeal deserves to fail. But before we conclude we must set aright an inadvertent error made by the High Court in making computation of the extent of the additional land which the respondent was entitled to hold in excess of the prescribed ceiling in the context of section 6(3B). Computation in this behalf must be made by applying the formula embodied in Section 6(3B) viz. that the family shall be entitled to hold land in excess of the ceiling area to the extent of "one fifth of the ceiling area for each member in excess of five" subject to the rider that the total area does not exceed twice the ceiling area. It needs to be clarified that on a true interpretation of the provision "each member in excess of five" must of logical necessity mean each ’such’ member of the specified handicapped category. In the present case there were 3 members in the family and it comprised of three members of the specified category viz. 3 minor sons. Under the circumstances for each minor son in excess of the five members the holder was entitled to 1/5th of the ceiling area in excess of the prescribed ceiling. That is to say he was entitled to 3/5th of the prescribed ceiling over and above the ceiling area subject to the rider that the total retainable holding of the family did not exceed twice the ceiling area. This aspect was lost sight of by the High Court in making the computation. Of course in the ultimate result in the facts of the present case nothing turns on it as in any view of the matter the extent of the land held by the family computed on this basis would not exceed twice the ceiling area. The holding of the family consisted of 60 acres and 4 gunthas. And making a computation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27). Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of respondent consisted of only 60 acres.
And making a computation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27). Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of respondent consisted of only 60 acres. Therefore the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner. While the High Court in terms followed its earlier decision in Nathekhan’s case (supra) it overlooked the ratio of the decision in this behalf. What was overlooked was the ratio reflected in the passage from para 6 of the decision extracted hereinbelow which is in accord with formula indicated by us: "...... There were two minor sons in the family of Nathekhan and one minor son in the family of Majamkhan. Since the family unit of each brother exceeded five in number so far as Nathekhan is concerned, he was entitled to hold land in excess of the ceiling area to the extent of two fifth of the ceiling area and Majamkhan with one minor son was entitled to hold land in excess of the ceiling area to the extent of one fifth thereof. Since the excess land in the case of each brother was of 4 acres and 38.5 gunthas being less than even one fifth of the ceiling area, it could not be held that their holding exceeded the permissible ceiling." 12. From the aforesaid decision, it can be said that in order to claim benefit of Section 6(3B) of the Act, the test which must be satisfied is a two fold test. First, whether the claimant's family consists of more than five persons. In the instant case, answer to this test is in the affirmative. However, the second test that is required to be answered in favour of the person who claims the benefit of Section 6(3B) is that such family must also comprise of one individual and other members besides himself, who must belong to all or any of the three specified categories. This test in the present case is not in favour of the land holder. Three minor sons and three minor daughters of predeceased son are not covered under any of the categories specified in Section 6(3B) of the Act.
This test in the present case is not in favour of the land holder. Three minor sons and three minor daughters of predeceased son are not covered under any of the categories specified in Section 6(3B) of the Act. We are, therefore, of the view that the authorities below have not committed any error while not accepting the contentions of the appellants. 13. Learned advocate for the appellants has placed reliance upon the decision rendered by the learned Single Judge of this Court in the case of Amratlal Bhikhbhai Patel Vs. State of Gujarat (supra) in support of his submission that the Canal Certificate issued by the competent officer is a conclusive piece of evidence and such certificate is to be issued after making an inquiry. It is true that the Canal Certificate issued by the competent officer is to be treated as a conclusive piece of evidence. In the present case, such certificate was issued by the competent officer and before the respondent authorities during two rounds of litigation, the appellants have never disputed the certificate issued by the competent officer. Further, GRT had remanded the matter back to the Mamlatdar and ALT for limited purpose. The said order was not challenged by the petitioners. Now, belatedly such contention was raised and, therefore, the same was not considered by the respondent authorities. We do not find any infirmity with the findings recorded by the respondent authorities. 14. The learned Single Judge while dismissing the petition has narrated the facts of the case and, thereafter, dismissed the petition while assigning brief reasons. However, during the course of final hearing of this appeal, we have heard learned advocate appearing for the appellants in detail and considered all the submissions and, therefore, merely because the learned Single Judge has not recorded the reasons in detail, the order passed by the learned Single Judge cannot be set aside only on this ground. We cannot dispute the proposition of law laid down by the Honourable Supreme Court in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Versus Shukla and Brothers (supra) wherein the Honourable Supreme Court has observed and held in Paragraph 11 as under: “11. In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India.
In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastise. Thus, it will not be far from absolute principle of law that the Courts should record reasons for its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the Court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.” 15. In view of the aforesaid discussion, we do not find any merits in any of the contentions raised by the learned advocate appearing for the appellants. We are, therefore, not inclined to interfere with the impugned order passed by the learned Single Judge as well as the impugned orders passed by the respondent authorities. 16. Accordingly, the appeal is dismissed. Rule is discharged. The interim relief granted earlier shall stand vacated. Consequently, Civil Application does not survive for adjudication. Accordingly, Civil Application stands disposed of.