SCA/1143719/1993 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11437 of 1993 With SPECIAL CIVIL APPLICATION No. 11438 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 ? ========================================================= PATEL DAHIBEN RAMJI JAGMAL - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR JITENDRA M PATEL for Petitioner(s) : 1, MS ML SHAH, AGP for Respondent(s) : 1, 4, RULE SERVED for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 21/10/2008 ORAL JUDGMENT 1. It is a clear case of collusion between close relatives in order to defeat provisions contained in the Gujarat Agricultural Lands SCA/1143719/1993 2/10 JUDGMENT Ceiling Act (“the said Act” for short). 2. Before adverting to the contention on part of the petitioners, few facts need to be noted. 2.1 The petitioner of Special Civil Application No. 11437/1993 Dahiben, daughter of Mahadev Manjibhai has challenged orders passed by the Deputy Collector as well as Gujarat Revenue Tribunal with respect to certain agricultural lands treating them to be excess land in terms of provisions contained in the said Act. 2.2 One Mahadevbhai was owner and occupant of agricultural land admeasuring 46 acres and 21 gunthas situated in village Limbdi, Taluka Vav. He expired in the year 1965 leaving behind three daughters namely the present petitioner Dahiben, Puriben and Jyotiben. Jyotiben and Puriben also expired sometime in the year 1989 and 1990. 2.3 It appears that sons of brother of deceased Mahadevbhai way back in the year 1965 approached the Revenue Authority and claiming to be legal heirs of deceased Mahadevbhai, had their names entered in the revenue records of the land held by deceased Mahadevbhai. Such entries were made in the year 1965 and continued all through out. With application of the said Act, they also made necessary declarations SCA/1143719/1993 3/10 JUDGMENT regarding their total holdings of the agricultural lands which reflected besides others 46 acres and 21 gunthas of land originally held by Mahadevbhai which they claimed to have inherited after his death. Ceiling proceedings were conducted with respect to such declaration. After round of remands, ultimately Gujarat Revenue Tribunal by its judgement and order dated 25.10.1985 finally declared that said land holders held 12 acres and 16 gunthas of land in excess of ceiling limit. 2.4 Sometimes thereafter, present petitioner Dahiben and her two sisters who were alive at that time joined hands with the original land holder Kanabhai Hingol and others and filed a joint review application before Gujarat Revenue Tribunal being case No. TEN.C.A. 34/1986. It was jointly suggested before the Tribunal that the lands originally belonging to deceased Mahadevbhai should vest in his daughters and that Kanabhai Hingol and others had no right, title or interest over such lands and that therefore, to that extent i.e. to the extent of 46 acres and 21 gunthas, holding of Kanabhai Hingol and others should be reduced. This review application came to be dismissed by Gujarat Revenue Tribunal by decision dated 25.8.1989. Insofar as the present petitioner Dahiben and her two sisters were concerned, it SCA/1143719/1993 4/10 JUDGMENT was held that they had no locus standi to prefer the review application since they were not parties to the earlier proceedings. 2.5 Pursuant to such decision, the present petitioner independently challenged the order of Mamlatdar and ALT dated 16.8.1983 declaring a total of 12 acres and 21 gunthas as surplus agricultural land. Deputy Collector dismissed the appeal by order dated 15.2.1991 holding inter-alia that land is shown in the name of Shankar Kana since 1965. He is continuing to hold the lands as owner since 24 years. All revenue records suggest that he is in actual possession and cultivating the land. Even the appeal filed by the petitioner herein challenging the revenue entries had been dismissed by the Appellate Authorities. 2.6 The petitioner thereupon approached Gujarat Revenue Tribunal and challenged the said order passed by the Deputy Collector. Revenue Tribunal dismissed the revision application by impugned order dated 16.7.1993 holding inter- alia that the petitioner was aware about earlier proceedings. There has been delay in raising the grievances. The attempt is to frustrate the provisions of the said Act. 3. Simultaneously, Patel Shankar Kana and Kana Hingol have filed Special Civil Application SCA/1143719/1993 5/10 JUDGMENT No.11438/1993. Curiously, the stand of the said petitioners is that the land of deceased Mahadevbhai is not of their ownership, but of Dahiben. In other words, they have by filing the petition supported Dahiben in her attempt to challenge the orders passed by the authorities below. 4. Learned advocate Shri J.M. Patel for the petitioners submitted that Dahiben was the legal heir of deceased Mahadevbhai along with other two sisters. Her cousin brother Kana Hingol could not have claimed any ownership over such land. Even if his name was entered in the revenue records, same would not bestow any title over the land in question. He submitted that as person interested the authorities below should have issued notice on the petitioner Dahiben before finalising the proceedings. In this regard, reliance was placed on the decision of Division Bench of this Court in case of Kashiben w/o. Ambalal Chhotalal Patel & ors. v. State of Gujarat & anr. reported in 1971 (12) GLR 540. 4.1 It was also contended that case of the petitioner Dahiben has not been examined on merits by the authorities below and only on ground of technicality her claim is turned down. 5. On the other hand, learned AGP Ms. M.L. Shah opposed the petitions and submitted that the SCA/1143719/1993 6/10 JUDGMENT petitioner Dahiben has at no stage claimed any right, title or interest over the land in question. Her belated attempt to assert her right is only to save the land from the clutches of the said Act. 6. Having thus heard the learned advocates appearing for the parties and having perused the material on record, I find that there is a clear attempt to frustrate the provisions of the said Act by collusive stand taken by Dahiben and Kanabhai Hingol and Shankarbhai Kanabhai. Right from the year 1965, Kanabhai Hingol claimed land of deceased Mahadevbhai as his legal heir. Entries in the revenue record were accordingly made at the relevant time itself. Since year 1965 all revenue records suggest that Kanabhai and his son Shankarbhai are in actual possession, occupation and cultivation of the land in question. At no stage, Dahiben or her other sisters when they were alive raised any dispute with respect to these aspects. From the order of the Gujarat Revenue Tribunal, it also appears that though an attempt was made to challenge the revenue entries by Dahiben, she did not succeed. For all purposes therefore, whatever right Dahiben had over the land in question, she had abandoned the same. Kana Hingol and Shankar Kana filed necessary declarations before the authorities under the said Act. Their declaration was processed and SCA/1143719/1993 7/10 JUDGMENT ultimately, it was found that they are holding total of 12 acres 21 gunthas of excess land. This was finally decided by the Revenue Tribunal in the year 1985. It was at that stage that when all other legal attempts failed, Kana Hingol and Shankar Kana came up with an application seeking review of earlier order passed by Gujarat Revenue Tribunal and such review application was supported by Dahiben and her other two sisters who were alive at that time. In fact, they were co-applicants in the review application. All the applicants i.e. Kana Hingol and others as well as Dahiben and her sisters this time around jointly posed that deceased Mahadevbhai having died intestate, his daughters Dahiben and her two sisters would inherit his land and Shankar Kana and Kana Hingol were not the owners thereof. Kana Hingol and others having enjoyed the actual cultivation of land since 1965 uninterrupted and unchallenged by Dahiben and her sisters, this time around took the stand that it is Dahiben and her sisters who are owners of the land and not themselves. This was a clear attempt to circumvent orders passed by the authorities under the said Act by virtue of which Shankar Kana and Kana Hingol stand to lose their agricultural land to the extent of 12 acres and 21 gunthas to the Government. In the present litigation also same modes operandi is sought to be applied. Dahiben in her petition contended SCA/1143719/1993 8/10 JUDGMENT that she is the owner of the land. Kanabhai Hingol and others have filed separate petition supporting the stand of Dahiben and asserting on record that she is the owner and not them. 7. For obvious reasons, such attempt cannot be allowed to succeed. As noted, Kana Hingol and his son right from 1965 not only claimed ownership over the said land, necessary entries in the revenue record were made in the year 1965 in this regard. They have been by all accounts enjoying exclusive possession thereof. They have been cultivating the land to the exclusion of Dahiben and her sisters. Dahiben has never raised any grievance about the same. Only in the year 1985 when Kana Hingol and Shankar Kana finally realised that the land to the extent of 12 acres and 21 gunthas would have to be surrendered by the Government, Dahiben and her two sisters supported by the said land holders jointly filed a review application before Gujarat Revenue Tribunal. In the year 1986, for the first time Dahiben and others contended that 46 acres and 21 gunthas of land is of their ownership and not of Kana Hingol and others. Kana Hingol and Shankar Kana who till then were contending that they are the owners of the land suddenly changed their stand and stated that it is Dahiben and her sisters who are the owners thereof. If Dahiben and her sisters had at the outset asserted legal right over the land in SCA/1143719/1993 9/10 JUDGMENT question, matter perhaps would have taken a different turn. In the present case, however, whatever right over the land they had, by their conduct they abandoned the same. They thought of reviving their right only when it was realised that Kana Hingol and his family members would lose part of their land under the provisions of the said Act. Simultaneously, Kana Hingol and others who had till then claimed ownership right over the land in question to the exclusion of Dahiben, were prepared to concede the ownership of Dahiben and they not only filed a joint review application before the Tribunal, before the High Court also they have filed an independent petition supporting claim of Dahiben. Allowing such a design to succeed would amount to fraud on the legislation. The land in question was always by all concern taken to be of the ownership of Kana Hingol and his family members. Dahiben cannot now with a view to get out of the clutches of provisions of the said Act be permitted to raise her claim. Particularly, in exercise of writ jurisdiction, I do not find any reason to interfere with the order passed by the Gujarat Revenue Tribunal. 8. The petitions are therefore, dismissed. Rule discharged. Interim relief, if any, stands vacated. (Akil Kureshi,J.) SCA/1143719/1993 10/10 JUDGMENT (raghu)