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2022 DIGILAW 690 (GUJ)

Dadubhai Najbhai Kachar v. State of Gujarat

2022-05-13

NIRZAR S.DESAI, R.M.CHHAYA

body2022
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of this appeal under clause 15 of the Letters Patent, the appellant has challenged the judgment dated 7.10.2013 passed by the learned Single Judge rejecting Special Civil Application No.2472 of 1983. 2. In the main petition, the petitioner has prayed for quashing and setting aside the order dated 25.2.1981 passed by the Mamlatdar and ALT in Ceiling Case No.78 of 1976-77, order dated 31.7.1981 passed by the Deputy Collector, Limdi in Ceiling Appeal No.103 of 1981 and order dated 24.12.1982 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.BA.915 of 1981. 3. It is the case of the appellant that mother of the petitioner filled in Form No.2 inter alia contending that the land held by her comprised the bid land which was not cultivable and excluding bid land, remaining land would not attract the ceiling limit. Ultimately the Mamlatdar & ALT vide order dated 25.2.1981 declared 583 acres and 14 gunthas of the land as excess. The aforesaid order was subsequently confirmed by the Deputy Collector, Limdi in the appeal and ultimately by the Gujarat Revenue Tribunal in revision application. All these three orders passed by the Mamlatdar & ALT, Chotila, Deputy Collector, Limdi and Gujarat Revenue Tribunal are subject matter of challenge before the learned Single Judge. 4. The learned Single Judge vide judgment dated 7.10.2013 rejected the petition against which the appellant has preferred the present appeal. 5. Heard Mr. S.P. Majmudar, learned advocate for the appellant and Mr. Tirthraj Pandya, learned AGP for the State respondents. 6. Mr. S.P. Majmudar, learned advocate for the appellant challenged the judgment of the learned Single Judge mainly on two grounds, that at the relevant point of time the Mamlatdar & ALT passed order dated 25.2.1985 in violation of principles of natural justice and that in another set of petitions having similar set of facts, learned Single Judge granted liberty in favour of the petitioners to raise the contention qua the provisions of Section 6(3-B) and Section 6(3-C) of The Gujarat Agricultural Lands Ceiling Act, 1960 (for short, ‘the Act’), whereas no such liberty was granted in favour of the present appellant. 6.1 Learned advocate Mr. Majmudar further contended that the learned Single Judge has failed to consider the applicability of the provisions of Repeal Act. 6.1 Learned advocate Mr. Majmudar further contended that the learned Single Judge has failed to consider the applicability of the provisions of Repeal Act. He further submitted that in view of the provisions of the Repeal Act of 2004, the bid land could not be declared as excess by the authorities below. Apart from the aforesaid submissions no other submissions were made by learned advocate for the appellant. 7. Mr. Tirthraj Pandya, learned AGP vehemently opposed the appeal and submitted that the learned Single Judge has considered each and every aspect canvassed by learned advocate for the appellant. He further submitted that though the appellant has stated that the Mamlatdar & ALT, Chotila passed the order dated 25.2.1981 in violation of principles of natural justice, from the record he pointed out that the Mamlatdar & ALT while deciding the matter on merit has taken into consideration the reply and additional reply filed by the appellant dated 26.4.1977 and 13.2.1981 respectively and the defence raised by the appellant. He further submitted that the learned Single Judge in para 7 of the judgment categorically dealt with the contention canvassed by the learned advocate for the appellant that liberty was granted to raise the point qua the provisions of Section 6(3-B) and 6(3-C) of the Act in respect of the petitioner of Special Application No.5113 of 1985, whereas the same was not granted to the appellant. He further submitted that the learned Single Judge in para 7 has categorically observed that the aforesaid liberty was granted to the petitioner of Special Civil Application No.5113 of 1985 and Special Civil Application No.1938 of 1984 on the basis of facts pleaded and grounds raised in those petitions. However, in the instant case, no such ground was taken nor any facts in respect of Section 6(3-B) and 6(3-C) of the Act were pleaded, and therefore, liberty was not granted in favour of the appellant. 7.1 In respect of submission of learned advocate for the appellant about Repeal Act, Mr. Pandya, learned AGP submitted that the Repeal Act will not have any effect of nullifying the earlier vesting of the land by operation of law as the Court is scrutinizing and examining the orders in light of the relevant provisions of the law. 7.1 In respect of submission of learned advocate for the appellant about Repeal Act, Mr. Pandya, learned AGP submitted that the Repeal Act will not have any effect of nullifying the earlier vesting of the land by operation of law as the Court is scrutinizing and examining the orders in light of the relevant provisions of the law. He further submitted that the orders under challenge were passed prior to the Repeal Act and in absence of anything pointed out by the learned advocate for the appellant and considering the decisions rendered by this Court in the case of Khachar Godadbhai Pithubhai & Ors. vs. The State of Gujarat reported in 2004 (2) GLH 589 , and the decisions rendered by the Hon’ble Apex Court in the cases of Nagbhai Najbhai Khachar vs. State of Gujarat reported in 2010 (10) SCC 594 and State of Gujarat and Anr. Vs. Manoharsinhji Pradyumansinhji Jadeja reported in 2013 (2) SCC 300 as the question about the bid land is no more res integra and in view of the aforesaid judgments even if the Act is repealed the position of law would not change, learned AGP prayed for dismissal of the appeal. 8. Heard learned advocates for the parties and perused the record of the case. As far as the submission of Mr. Majmudar, learned advocate for the appellant about the principles of natural justice is concerned, we have noted the fact that it is true that the appellant has given application for adjournment on 17.2.1981 and yet the Mamlatdar & ALT, Chotila passed the order on 25.2.1981. However, the fact remains that while passing the aforesaid order, reply and additional reply filed by the appellant were considered by the Mamlatdar and ALT, Chotila. All the defence taken by the appellant was also considered by the Mamlatdar & ALT and thereafter the impugned order was passed. Therefore, it cannot be said that the version of the appellant was not considered by the Mamlatdar, which would amount to violation of principles of natural justice. All the defence taken by the appellant was also considered by the Mamlatdar & ALT and thereafter the impugned order was passed. Therefore, it cannot be said that the version of the appellant was not considered by the Mamlatdar, which would amount to violation of principles of natural justice. 8.1 As far as the submission of learned advocate for the appellant that differential treatment was given to the appellant inasmuch as liberty was granted to the petitioners of Special Civil Application No.1938 of 1984 and 5113 of 1985 and allied matters to canvass the ground in respect of the provisions of Section 6(3-B) and 6(3-C) of the Act and the same was not granted to the appellant is concerned, the aforesaid contention was raised before the learned Single Judge, and the learned Single Judge dealt with the aforesaid contention in para 8 of the judgment. Relevant portion of para 8 of the judgment dated 7.10.2013 reads as under : “….[ii] The ground raised at the bar in respect of additional unit by pleading presence of mother and grand mother is also of no avail to the petitioner, as much as the facts recorded in these two judgments give clear indication that in one matter the question was that of a miscalculation of the family and it had been brought on record that the family was consisting of more than 5 persons, as could be seen from the facts of the case as well as, provision of Section 6 of the Act. In the instant case, as could be seen from the orders impugned and the elaborate order of Tribunal, one can safely conclude that the person, who filled in form is mother on behalf of minor son and in absence of any specific pleadings qua units and entitlement under the law, there cannot be any adjudication therein. It is required to be noted that in the earlier matter also the Court while deciding the matter has left liberty to the applicants and petitioners thereunder to claim an additional unit only with appropriate application to be preferred within 30 days from the date of the order thereunder, but that was not to be treated as entitling the petitioner thereunder to retain the land. The land to be surrendered and thereafter only the claim was permitted to be raised, which in turn was to be adjudicated by the competent authority and only during the adjudication, the portion of additional unit claimed was not to be alienated by the State in favour of the third party. [iii] In the present case, the Court is of the considered view that the question of family member and admissibility of unit by attracting Section either 6 (b) or 6 (c), would not be available as it was minor son s holding, which was being decided at the instance of mother and in absence of any pleadings, this Court is not justified in interfering with the orders impugned under Article 226 and 227 of the Constitution of India. [iv] It is also required to be noted that at the relevant time, while admitting this matter, this Court passed the following order. Rule to be heard with Special Civil application No.1098/83. Ad interim relief in terms of para 9 (E). The group along with Special Civil Application No.1098/83 came to be disposed of by the Division Bench vide order dated 17th February, 2004. This matter is not decided therealong however, the Court perused the judgment of the group and it can be said that nothing contains in the judgment, which could be of any avail to the petitioner. The said judgment in case of Khachar Godadbhai Pithubhai & Ors. V/s. The State of Gujarat is reported in 2004 (2) GLH 589 .” 8.2 The aforesaid observations made by the leaned Single Judge in judgment dated 7.10.2013 would clearly indicate that the learned Single Judge has considered the aspect of Section 6(3-B) and 6(3-C) of the Act as well and liberty was not granted in favour of the appellant to agitate the aforesaid issue before the Mamlatdar & ALT by remanding the matter to the Mamlatdar & ALT for the aforesaid purpose as there were no pleadings in respect of admissibility of unit by attracting Section 6(3-B) and 6(3-C) of the Act. The learned Single Judge has rightly considered the petition to be under Article 226 of the Constitution of India as the same was against the order passed by the Tribunal and hence we are in complete agreement with the view taken by the learned Single Judge. The learned Single Judge has rightly considered the petition to be under Article 226 of the Constitution of India as the same was against the order passed by the Tribunal and hence we are in complete agreement with the view taken by the learned Single Judge. 8.3 So far as the contention of the appellant in respect of Repeal Act is concerned, the learned Single Judge has observed that all the petitions were disposed of in light of the decision of the Hon’ble Apex Court in the case of Nagbhai Najbhai Khachar (supra) as the point whether bid land forming part of reckoning the holding is no more res integra. Hence, whether the Act was repealed or not would not make any difference as the issue is covered by the Hon’ble Supreme Court and learned advocate for the appellant could not point out anything contrary to the same. 9. In view of the aforesaid discussion as well as considering the fact that the learned Single Judge has given cogent reasons while dismissing the petition, we do not find any reason to interfere with the judgment dated 7.10.2013 rendered by the learned Single Judge in Special Civil Application No.2472 of 1983. Accordingly, the appeal fails and the same is hereby dismissed. Consequently, connected civil application stands disposed of.