SCA/7494/1993 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7494 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GANGABEN CHAGANBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR MA KHARADI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 MS. REETA CHANDRANA AGP for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 22/10/2008 ORAL JUDGMENT 1. The petition arises out of the proceedings under the Gujarat Agricultural Land Ceiling Act, 1960 ('the Act' for short). The petitioner has SCA/7494/1993 2/9 JUDGMENT challenged orders passed by Mamlatdar & ALT, Deputy Collector and Gujarat Revenue Tribunal by virtue of which a total of 28 acres 38 gunthas of land of the petitioner is declared as surplus. Mamlatdar & ALT gave sch a finding by his order dated 24.6.1987 which came to be upheld by the Deputy Collector by order dated 13.6.1988 and Gujarat Revenue Tribunal by decision dated 4.7.1992. With respect to the area of land and the ceiling limit, there is no dispute raised by the petitioner. The petitioner however, has raised following legal contentions: (i) Land admeasuring 18 acres 37 gunthas was transferred by him in favour of his son in the year 1970 and his wife, i.e., mother of his son, as his guardian, was looking after the land. It was contended that the said transfer was not hit by the provisions of Sections 7 or 8 of the Act and the land covered by the said transfer could not have been clubbed in the holding of the petitioner. SCA/7494/1993 3/9 JUDGMENT (ii) It was contended that certain portion of land, though falling within the command area of irrigation scheme, was not actually irrigated and it was so admitted by the Canal Officer in his cross-examination before the Mamlatdar. It was contended that in any case the certificates produced on record did not reflect the position of irrigation as on 1.4.1976. 3. Having heard learned advocate Mr. M.A. Kharadi for the petitioner and learned AGP Ms. Reeta Chandrana for the respondents and having perused the decisions under challenge, I find that admittedly the son of the petitioner was minor on 1.4.1976. Therefore, even if the factum of transfer of land by the petitioner in favour of his son in the year 1970 is accepted as a genuine one, provisions of sub-section (2) of Section 6 of the Act would ensure that the land so transferred would still have to be clubbed in the holding of the petitioner for the purpose of ascertaining his ceiling. SCA/7494/1993 4/9 JUDGMENT 4. Section 6 (2) of the Act reads as follows: “6.Computation of surplus land-Obligation of the Authorities:-{1} On consideration of the scheme contained in Sec.6 of the Act, in the light of what is provided in Sec.15, it is clear that the authorities under the Act are under obligation for purposes of computation of surplus land to decide:- (1) in the first place the total holding of the land of a person which may include also a joint family; (2) if such person is holding land individually as well has a share in the land of joint family, the authorities must determine the land which such joint family is entitled to hold under Sec.6 and then determine as to what would be the share of such individual person in the joint family land and then add the area of land equivalent to his share with the land held by him individually”. SCA/7494/1993 5/9 JUDGMENT 5. An attempt was however, made to contended that the case of the petitioner is covered under Section 15 of the Act and since the transfer was way back in the year 1970 neither clause (b) nor clause (c) of Section 15 would apply. Section 15 of the Act reads as under: “15.Computation of surplus land.-- The extent of surplus land, if any, held by any person shall be computed on the basis of the total land held by such person; Provided that the total land so held shall include-- (a) where such person holds in addition to the land held by him individually as owner or tenant, a share in the land held by a joint family, an area of land equivalent to his share in the land which such joint family, is entitled to hold under Section 6, (b) land, if any, transferred or sub- divided by or on behalf of such person in SCA/7494/1993 6/9 JUDGMENT contravention of section 7, and (c) land, if any, transferred or partitioned by such person after the 15th day of January, 1959 but before the commencement of this Act or after 14th January, 1971 but before the specified date, and in respect of which no application for a declaration under section 8 was made or any application made under section 8 has been rejected.” 6. Though it is true that by virtue of clause (b) or (c) of Section 15 of the Act, the land transferred by the petitioner in favour of his son would not revert back to him for the purpose of the Act, one cannot lose sight of the provisions contained in Section 6 (2) of the Act noted herein above. In the present case, the land having been transferred by the petitioner in favour of his son who was a minor as on 1.4.1976, by virtue of provisions of sub-section (2) of Section 6 of the Act, holding of the minor son SCA/7494/1993 7/9 JUDGMENT would have to be clubbed together in the hands of the petitioner for the purpose of deciding the extent of land he had in excess of ceiling limit. 7. With respect to the question of land being irrigated or not, Mamlatdar in his order dated 24.6.1987, on the basis of the statement made by the Canal Officer in the cross-examination, accepted the stand of the petitioner that 14 acres and 14 gunthas of land though falling within the command area cannot be treated as perennially irrigated or seasonally irrigated. Apparently, Mamlatdar accepted the statement of Canal Officer that on account of various difficulties such land was not being effectively irrigated. Consequently, Mamlatdar treated 14 acres and 14 gunthas of land of the petitioner as being non-irrigated land. When the stand of the petitioner was wholly accepted by the Mamlatdar and when such conclusion of the Mamlatdar was not disturbed either by Deputy Collector or by SCA/7494/1993 8/9 JUDGMENT Gujarat Revenue Tribunal, the petitioner would have no further grievance in this regard. 8. It is undisputed that rest of the land is taken to be perennially irrigated as per the certificate produced by the Government and it was not seriously disputed by the petitioner. 9. Under the circumstances, since no other contentions were raised, I find no merit in the petition. 10. It would however, be open for the petitioners who were pursuing this petition being heirs of deceased petitioner to indicate to the authorities which portion of the land to the extent of excess land they wish to surrender to the Government. If they wish to do so, they may do it in writing within four weeks hereof. 11. The petition is dismissed. Rule is SCA/7494/1993 9/9 JUDGMENT discharged. Interim relief stands vacated. (Akil Kureshi,J.) ... (karan)