1. Petitioners have preferred the present petition to challenge the order passed by the Mamlatdar dated 1.5.1995 and its confirmation thereof by the Deputy Collector and the Revenue Tribunal; whereby, certain portion of the land held by the petitioner Nos.1 and 4 are declared as surplus land under Gujarat Agricultural Land Ceiling Act, 1960 (herein after referred as ‘the Act’).
2. The short facts are that: the petitioner No.1 with his wife i.e. petitioner No.4 were holding the agricultural land at Village: Obha, Tal.Hansot, District: Bharuch. On 8.11.1974, the partition was made by him and as per the said partition, different portion of the land of respective survey numbers were acquired by petitioner Nos. 2 and 3 as sons of petitioner No.1. Revenue Entry was also mutated vide Entry No.2647. It appears that thereafter, the form was filled under the Act by the petitioner and his wife since they were holding the agricultural land more than prescribed limit. The proceedings were ultimately inquired into by the Mamlatdar from 1976 onward and earlier orders were passed and thereafter, the matter was remanded to the Mamlatdar and the last order was passed by the Mamlatdar on 1.5.1995; whereby, he held that the petitioner and his wife were holding surplus land ad-measuring 24 Acres and 18 Gunthas and said land was declared as surplus land. Petitioners carried the matter before the Deputy Collector in appeal and the Deputy Collector vide order dated 22.12.1995 confirmed the order of the Mamlatdar. Petitioners also carried the mater before the Revenue Tribunal in revision and the Tribunal after hearing both the sides has dismissed the revision as per the order at Annexure-E dated 22nd January, 1999. Under these circumstances, the present petition before this Court.
3. Heard Mr.Patel, learned counsel for the petitioners and Mr.Jayswal, learned AGP for the respondent.
4. The first contention raised by the learned counsel for the petitioners is that the petitioner No.1 and his wife, petitioner No.4 had 2 major sons i.e. petitioner Nos. 2 and 3 and therefore, they would be entitled to two separate units for both the major sons and it was submitted that since separate units are not considered by all the lower Authorities, an error has been committed which is apparent on the face of the record which may call for interference.
5. The contention, prima-facie, appears to be attractive but upon the scrutiny, it does appear that it has no factual base inasmuch as, it is not that the holding of the petitioner and his wife as well as holding of both his sons i.e. petitioner Nos. 2 and 3 were treated as single holding of a family by petitioner No.1 and his wife. But on the contrary, in the form filed by him, petitioner had treated his own holding with his wife being the holding of his family and so far as petitioner Nos. 2 and 3 are concerned, since the partition had already taken place vide entry dated 8.11.1974, their holding was not included at all. So far as holding of petitioner Nos. 2 and 3 after the partition are concerned, they were not holding the land above the prescribed limit and therefore they did not file the form under the Act on the ground that they were not holding any surplus land. The another aspect is that the petitioner after partition vide Entry dated 8.11.1974, for all purposes, treated the land alloted to his both sons i.e. petitioner Nos. 2 and 3, as separate and not only that but the application was also made to the competent Authority under Section 8 of the Act to treat the partition as valid and not to defeat the amendment made in the Act and the partition made vide entry dated.8.11.1974 be treated as valid. As per the order of the Mamlatdar, it appears that the Collector found that even otherwise also, the petitioner would be entitled to separate share of major son and therefore, had granted the application.
6. Mr.Patel, orally submitted that such application was not granted. Oral submissions, if considered with the averment made in the petition at paragraph No.4, it has been mentioned as under:
“The Collector, Bharuch, after holding inquiry, he by his order dated 3.9.1976 in case No.22 holding that as the partition was in favour of 2 sons who are major and the petitioners ultimately is entitled to hold 3 units land and therefore, the transfer was sanctioned under Section 8 of the Act”. (Emphasis supplied)
7. Mr.Patel submitted that the statement made in the petition that the transfer was sanctioned under Section 8 of the Act is a mistake and in his submission, transfer was not sanctioned.
8. I am afraid such can be accepted on the face of the clear statements made that by the order of the Mamlatdar the application was granted. If the application under Section 8 is treated as granted and the partition vide Entry dated 8.11.1974 is held to be valid, consequence would be that the land held by the petitioner and his wife will be for his own family in exclusion holding of his two major sons, petitioner Nos. 2 and 3, who are having separate holding and separate family.
9. The additional aspect, in the present case, is that as recorded by the Mamlatdar in the impugned order, petitioner Nos. 2 and 3 had declared before the Mamlatdar that the holding should be treated as separate and should not be clubbed with the holding of the petitioner Nos. 1 and 4 i.e. their father and mother. Therefore, on factual matrix, it does transpire that the holding of all was one. Therefore, the contention not supported by the record. On the contrary, as observed earlier, the petitioner and his wife for all purposes treated their holding of the agricultural land as separate in exclusion or any contradictions to the holding of both the sons i.e. petitioner Nos. 2 and 3. If the partition had already taken place of any ancestral property or the family property and his major sons were having separate holding of the agricultural land, they are to be treated as separate for their family and the holding of the petitioner No.1 and his wife petitioner No.4 would be for his own family in contradictions to family of his both major sons.
10. Had it been a case where any major son was available after excluding petitioner Nos. 2 and 3, the matter might stand on different footing and on different consideration, but such situation did not exist. So far as, other minor son and daughter of the petitioner Nos. 1 and 4 are concerned, for them separate unit is not to be given. It appears that the Mamlatdar treated the holding of the petitioner as separate and so by Deputy Collector in his order. The Revenue Tribunal has dealt with the said aspects and has rightly held that since the holding of both the major sons was already separate prior in point of time, it cannot be said that the petitioners in spite of the same, would be entitled to additional unit of the said both major sons.
11. Under the circumstances, it appears that contention is devoid of merit and cannot be accepted.
12. Mr.Patel next contended that the certain area which was irrigated and certain area over which the cultivation was not possible because of infertile land have been included in the total holding of petitioner Nos. 1 and 4 and therefore, he submitted that those lands are required to be excluded for the purposes of calculating ceiling limit.
13. In my view, such aspect is essentially a fact finding inquiry for which the Mamlatdar as well as Deputy Collector upon evidence available on record and after appreciation have found that there is no satisfactory material produced to show that the portion of the land was non cultivable or that there was no irrigation available as the case may be. Under the circumstances, when there is concurrent finding of fact by all the lower Authorities, such contention cannot be entertained nor can be further examined as sought to be canvassed.
14. In view of the aforesaid, orders passed by the lower Authority call for no interference. Hence, petition is meritless, therefore, dismissed. Considering the facts and circumstances, no order as to costs. Rule discharged.
(JAYANT PATEL, J.) (ashish)