RASULBHAI AMIRBHAI GARASIA Vs. DEPUTY MAMLARDAR REVENUE

JUDGEMENT

(1.) Heard learned advocate Mr. C.L. Soni for the petitioner; Mr. H.C. Patel, learned AGP for respondents No.1 to 3. Learned advocate Mr. N.A. Shaikh appearing for newly added respondent No.4 who has been ordered to be joined as respondent No. 4 by passing orders in Civil Application No. 8279 of 2002 has filed sick note for today.

(2.) In this petition, the petitioner has challenged the order passed by the Gujarat Revenue Tribunal in Revision Application No. 162 of 1996 dated 3.11.1999. Brief facts, as narrated by the petitioner in this petition, are to the effect that the petitioner had declared the lands held by him in his own name as well as in the name of the joint family by submitting particulars in Form No.2 under the provisions of the Gujarat Agricultural Lands Ceiling Act, 1960. The petitioner had declared that he, with his joint family, held lands ad measuring 28 Acres and 33 Gunthas. It was also declared by him that out of Block No. 108 (survey No. 105), he had sold 7 Acres and 17 Gunthas of the land to one Shri Rasulbhai Vajirbhai Garasia. Satakhat (Agreement to sell) for the said land was entered into on 15.5.1968 and possession receipt was also executed in favour of the said person on 15.5.1968 for the said land. According to the petitioner, his form was processed and considering the evidence, the Mamlatdar vide his order dated 12.3.1987 declared 5 Acres and 12 Gunthas as excess land. Said order was challenged by the petitioner before the respondent No.2 by filing two different appeals and the respondent No. 2 Deputy Collector confirmed the said order of the Mamlatdar. Against the order passed by respondent No.2, two different revision applications being revision application No. 88 of 1988 and 126 of 1988 were preferred wherein the tribunal vide its order dated 29.4.1992 remanded the matter to respondent No.1 for fresh decision. According to the petitioner, respondent No.1 again decided the matter by holding that the total area held by the petitioner was not in excess of 36 Acres which were retainable land under the Act and, therefore, he ordered to withdraw the notice issued to the petitioner against which, the Deputy Collector (Revenue) filed appeal being Appeal No. 33 of 1994 before respondent No. 2 which was allowed by respondent No. 2 vide his order dated 21.5.1994 and again remanded the matter back to respondent No. 1. According to the petitioner, respondent No.1 again called for the canal certificate and proceeded with the hearing of the matter and finally came to the conclusion that the petitioner was holding 7 Acres and 9 Gunthas of the land as excess land. Against the order passed by respondent No.1, petitioner preferred ceiling appeal No. 15 of 1996 before the respondent No. 2 before whom the matter was argued in detail. However, respondent No.2 after considering the evidence on record and the submissions made on behalf of the parties, dismissed the appeal filed by the petitioner by his order dated 11.7.1996. Against the said order of respondent No.2, the petitioner filed revision application No. Ten.BS.162 of 1996 wherein the tribunal by its order dated 3.11.1999, dismissed the said revision application and, therefore, present petition has been filed by the petitioner.

(3.) Learned advocate Mr. C.L. Soni appearing for the petitioner has raised the only one contention before this Court while challenging the orders passed by the lower authorities that before the Mamlatdar ALT (Ceiling) Choryasi Court in Ceiling Case No. 659 of 1976, contention was raised by the petitioner that the petitioner is not accepting or admitting the Canal Certificate issued by the Canal Officer; the petitioner also requested to the concerned authority to give reasonable opportunity to cross examine the canal officer. From these submissions, two facts are clear that whatever Canal Certificate issued by the Canal Officer was not admitted by the petitioner and a request was made for granting him an opportunity to cross examine the Canal Officer. He also submitted that after remanding the matter back, the authority has demanded Canal Certificate from the Canal Officer by order dated 14.10.1994 which certificate was given by the Canal Officer and the same was kept on the record. It was also submitted by him that while deciding the matter, as referred to above, the Mamlatdar came to the conclusion that whatever submissions made by the petitioner in respect of the Canal Certificate cannot be considered because the certificate is considered to be the conclusive proof and, therefore, the submission made by the petitioner for an opportunity of cross examination of the Canal Officer was rejected by the Mamlatdar. It was also submitted by him that before the Deputy Collector also in Appeal No. 15 of 1996, a specific contention was raised by the petitioner that no reasonable opportunity was given to the petitioner for cross examination of the Canal Officer but the said contention raised by the petitioner before the Deputy Collector in appeal No. 15 of 1996 was not considered and relying upon the canal certificate, he rejected the appeal filed by the petitioner. He also submitted that the said order of the Deputy Collector was challenged by the petitioner before the Gujarat Revenue Tribunal and before the tribunal also, same contention was raised by the petitioner that the opportunity of cross examination of the Canal Officer was not given by the Mamlatdar to the petitioner. He also submitted that though such specific contention was raised by the petitioner before the tribunal and though the submissions on that line were made by the petitioner before the tribunal, the tribunal has come to the conclusion that on the basis of the submissions made by the Government advocate that there was no prayer or request made by the petitioner before the lower authority for cross examination of the canal officer and, therefore, at the stage of revision, such request cannot be considered. Such finding was given by the tribunal in its order dated 3.11.1999. He also submitted that right from the beginning after remand of the matter to the Mamlatdar, reasonable request made by the petitioner for an opportunity of cross examination of the Canal Officer was not considered by the Mamlatdar and without examination and cross examination of the Canal Officer, such canal certificate issued by the Canal Officer was considered as a conclusive evidence; contention in that regard raised by the petitioner before the deputy collector was not considered and appreciated by the deputy collector and rejected the appeal and, therefore, the revisional authority has committed an error in recording the conclusion that such contention has not been raised by the petitioner before the lower authorities. According to him, this is an error committed by the tribunal which is apparent on the face of the record and, therefore, orders passed by the lower authorities as well as the order of the Gujarat Revenue Tribunal are required to be quashed and set aside.