1. The present petition arises from the judgement and order dated 19.12.1996 passed by the Gujarat Revenue Tribunal in Revision Application No.629 of 1994, whereby the Tribunal has dismissed the revision and has confirmed the order passed by the Mamlatdar and Deputy Collector.
2. The short facts of the case appears to be that the deceased Kamabhai Malabhai was holding the agricultural land at Village Nagwada and Jainabad of Dasada Taluka of Surendranagar District, total admeasuring 71 acres and 01 guntha. Out of the aforesaid total holding, the land at Village Nagwada was admeasuring 62 acres and 24 gunthas, whereas the land at Jainabad was admeasuring 8 acres and 17 gunthas. As per the petitioner, out of the land held by the deceased Kamabhai at Nagwada, the land admeasuring 15 acres and 15 gunthas bearing Survey No.174 was transferred in the year 1970 during the life time of the deceased Kamabhai, since, as per the petitioner, the land was a joint holding of Kamabhai and his father and Kamabhai, therefore, had transferred the land in favour of the petitioner. The revenue entry was mutated for such transfer, but it is an admitted position that there was no sale deed or document for transfer. The petitioner made an application under Section 8 of the Gujarat Agricultural Land Ceiling Act (hereinafter referred to as 'the Act') to treat the transfer as bona fide. However, the said application was not granted and it was rejected. The ceiling case was processed by the Mamlatdar and ultimately the Mamlatdar declared the land admeasuring 17 acres and 01 gunthas as surplus land. However, for taking possession of the surplus land, Mamlatdar ordered that the total area of the land admeasuring 8 acres and 17 gunthas at Village Jainabad shall be taken as surplus land and the land admeasuring 8 acres and 24 gunthas at Nagwada shall also be taken as surplus land. As per the petitioner, the said surplus land admeasuring 8 acres and 24 gunthas is stated to be taken from the land transferred to the petitioner by the deceased Kamabhai and, therefore, the petitioner carried the matter before the Deputy Collector being Appeal No.5 of 1993-94. The Deputy Collector vide order dated 27.5.1994 dismissed the appeal. The matter was further carried before the Gujarat Revenue Tribunal by revision and the said revision has also been dismissed vide order dated 19.12.1996. Under the circumstances, the present petition before this Court.
3. Heard Mr.Amin, learned Counsel for the petitioner and Mr.Patel, learned AGP for the State. Respondent No.2 has refused to accept service and Respondent No.3 is served by direct service. However, none appears for respondents No.2 and 3.
4. The learned Counsel for the petitioner mainly relied upon the provisions of Sections 15 and 17 of the Act and contended that even if the total surplus land of the deceased is to be taken by the Government as per the Act, since the land at Nagwada is admeasuring more than 8 acres and 24 gunthas, the land in his possession is required to be excluded and the land is to be acquired as surplus land from the remaining land of the deceased Kamabhai, which is in possession of Dodia Vasubhai Haribhai and he submitted that the aforesaid aspect has not been properly considered by the Tribunal and, therefore, this Court may interfere.
5. The learned AGP, Mr.Patel while supporting the judgement of the Tribunal contended that once the transfer was held to be not bona fide and the application under Section 8 was rejected there is no right with the petitioner to raise the such grievance.
6. In order to examine the contention, reference to Section 15 would be relevant. Section 15 of the Act reads as under:-
“Section 15. Computation of surplus land.- The extent of surplus land, if any, held by any person [xxx] shall be computed on the basis of the total land held by such person [xxx];
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 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.”
7. It is an undisputed position that so far as the land, which is in possession of the petitioner is concerned, the application under Section 8 of the Act was made and the same was rejected and, therefore, the land in possession of the petitioner at Nagwada originally belonging to the deceased Kamabhai would fall in the category of Clause (c) of proviso to Section 15. Section 17 of the Act, which is also relevant, reads as under :-
“Section 17. Mode of determining in certain cases area of surplus land out of total land.- Where the extent of surplus land is specified in the case of any person, and his total land includes the land referred to in clause (b) or (c) of the proviso to section 15, the surplus land shall be allocated on the following basis that is to say-
(i) if the total land excluding the land referred to in the said clauses is more than or equal to the extent of surplus land specified in his case, than the surplus land shall come out of such total land, and
(ii) if such total land is less than the extent of such surplus land, then the surplus land shall first come out of the whole of such total land; the remainder shall come out of the land referred to in clause (b) of the proviso to section 15, and the remainder, if any shall lastly come of the land referred to in clause (c) of the proviso to section 15.”
8. As per Section 17 of the Act, it has been provided that when the land is declared as surplus land that the total land, which includes the land referred to in Clauses (b) and (c) of proviso to Section 15 surplus land shall be excluded on the basis of the manner prescribed. Sub-clause (i) provides that if the total land excluding the land in both the said clauses namely; Clauses (b) and (c) of proviso to Section 15 is more than or equal to the extent of surplus land, then surplus land has to come out from such land namely excluding the land covered by Clause
(b) and (c) of proviso to Section 15.
9. It is undisputed position that the total land to be acquired as surplus land is admeasuring 17 acres and 01 gunthas. Out of the total land of 17 acres and 01 gunthas, the land admeasuring 08 acres and 17 gunthas at Jainabad belonging to the deceased Kamabhai is acquired as surplus land, for which no dispute is raised. However, the remaining land to be taken as surplus land would be 8 acres and 24 gunthas from the land of Nagwada. As observed earlier, the total area of the land at Nagwada is admeasuring 62 acres and 24 gunthas. Out of the said land, land admeasuring 15 acres and 15 gunthas of bearing Survey No.174 is a portion, which was said to have been transferred in favour of the petitioner and for which the application under Section 8 of the Act was made and the same was rejected. Therefore, such portion of the land would fall in the category of Clause (c) of Proviso to Section 15. Consequently, the remaining land available at Nagwada, excluding the land admeasuring 15 acres 15 gunthas covered by Clause (c) of Proviso to Section 15 would be the land admeasuring 47 aces and 09 gunthas. As against the said total area of 47 acres and 09 gunthas, the land to be acquired as surplus land at Nagwada is admeasuring 8 acres and 24 gunthas only. Therefore, the said surplus land, in view of the aforesaid Clause (i) of Section 17, is to be taken from the land admeasuring 47 acres and 09 gunthas originally held by the deceased Kamabhai and it is only thereafter if surplus land is not available, then only the land can be taken from amongst the lands covered by Clause
(c) of Proviso to Section 15. In the present case, such circumstances would not arise because as against the total net area of 47 acres and 09 gunthas, the land to be acquired as surplus land at Nagwada is admeasuring 8 acres and 24 gunthas. Therefore, it was required for the Tribunal to consider the said aspect. It can also be said that the Mamlatdar as well as the Deputy Collector and the Tribunal on the aspect of the area to be taken as surplus land, excluding the land held by the petitioner, have committed jurisdictional error, which may attract the power of this Court under Article 227 of the Constitution of India.
10. It is true that in the event the land is taken as surplus land originally held by the deceased Kamabhai and may be in the possession of Dodia Vasubhai being legal heir of Kamabhai due to 'Will' or otherwise, the rights or dispute, if any, between the deceased Kamabhai and the petitioner may remain and they may resort to appropriate proceedings, if otherwise permissible in law for ventilating their grievance, but the essential purpose of Section 17 appears to be that the Government may have undisputed land as surplus land at the first instance and it is only thereafter, if thee is no surplus land is available, the Government may take portion of the disputed land. In the present case, it was required for the Mamlatdar and so was for the Deputy Collector and the Revenue Tribunal to clarify the said aspects, but the same has not been properly considered. Hence, the order passed by the Mamlatdar and its confirmation thereof by the Deputy Collector and the Revenue Tribunal deserve to be modified to that extent.
11. In view of the aforesaid observations and discussion, the impugned judgement and order of the Tribunal so far it relates to confirming the findings of the Mamlatdar and the Deputy Collector for declaring the land admeasuring 17 acres and 01 gunthas of the deceased Kamabhai as surplus land is not interfered with. Similarly, on the aspect of findings recorded by the Tribunal for taking possession of the land admeasuring 8 acres and 17 gunthas at Village Jainabad as surplus land is also not interfered with. However, on the aspect of taking possession of the land admeasuring 8 acres and 24 gunthas at Village Nagwada, the order of the Tribunal is modified to the extent that it will be open to State authorities to take possession of the surplus land admeasuring 8 acres and 24 gunthas at Nagwada from the remaining land admeasuring 47 acres and 09 gunthas held by the deceased Kamabhai and not from the land admeasuring 8 acres and 24 gunthas, wherein Survey No.174, which is said to have been transferred in favour of the petitioner and for which the application was made under Section 8 of the Act, which has been rejected and, therefore, covered by Clause (c) of proviso to Section 15 of the Act. It is ordered that the competent authority shall be at liberty to take possession of the land admeasuring 8 acres and 24 gunthas at Village Nagwada from the land, excluding the land bearing Survey No.174 admeasuring 15 acres and 15 gunthas, for which the application under Section 8 of the Act made by the petitioner and the same was rejected.
12. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
(Jayant Patel, J.) vinod