GULABSING KABHAI Vs. PATEL CHIMANBHAI SHIVABHAI

JUDGEMENT

(1.) This Special Civil Application raises an interesting question as to what can be said to be irrigated land while considering the ceiling area for the purposes of the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as the Act). The petitioner is the tenant and the respondent is the landlord. The landlord had obtained the certificate under the provisions of sec. 88C of the Act and was a certified landlord and the petitioner was the excluded tenant. After the certificate under sec. 889 was obtained the landlord filed an application under sec. 32T of the Act for possession of the land for personal cultivation. Under the provisions of sec. 32T (5)(b) ordinarily the landlord is entitled to take possession of half the land leased by him to the tenant but if the landlord has not been cultivating personally any other land or has been cultivating personality other land less than one half an economic holding and the opponent has been cultivating or is entitled to cultivate personally other land exceeding half an economic holding the landlord is entitled to take possession of the whole of the land leased and the question arose before the Mamlatdar as also before the District Deputy Collector in appeal and the Gujarat Revenue Tribunal in revision as to whether the tenant had more than half an economic holding within the meaning of secs. 32T(5)(b). The whole question turned upon the factor whether some portion of the land of the tenant was irrigated land or not. It is not in dispute before me that while considering the total area of an economic holding twice the area of the irrigated land has to be considered as compared with the unirrigated land. An economic holding in this particular area where the lands in dispute are situated is 16 acres and half the economic holding would therefore be 8 acres. If any portion of the tenants holding is irrigated for the purpose of considering whether half the economic holding is made up or not the area of the irrigated land has to be doubled and it is that double area which is taken into consideration for the purpose of finding out whether the land in the occupation of the tenant exceeds half the economic holding or not.

(2.) Before the Mamlatdar the Deputy Engineer Mahi Canal having his office at Matar in Kaira District was examined; and he has said in his deposition that some of the S. No. occupied by the tenant were within the command area of Mahi Canal. On this evidence of the Deputy Engineer the Tribunal held that as those S. Nos. were within the command area of Mahi Canal they should be treated as irrigated land and making its calculations on that footing the Tribunal came to the conclusion that the lands in possession of the tenant for the purpose of calculating his economic holding would come to 10 acres and 10 gunthas and would thus exceed half the economic holding. According to the Tribunal the landlord would then be entitled to get the entire land instead of half the land. It is against this decision of the Gujarat Revenue Tribunal that the present Special Civil Application has been filed.

(3.) Sec. 6A of the Act provides 6 For the purposes of this Act (a) irrigated land whether perennially or seasonally irrigated shall not include land irrigated by sources other than canals or bandharas within the meaning of the Bombay Irrigation Act 1879 or any lift irrigation system constructed or maintained by the State Government. We are not concerned with sub-sec. (b) of sec. 6A. In this negative definition of irrigated land irrigated by a canal or bandhara or any lift irrigation system constructed or maintained by the State Government would fall within the definition of irrigated land. Barring sec. 6A there is no other definition of irrigated land in the Tenancy Act. However in the Gujarat Agricultural Lands Ceiling Act 1960 which also deals with a topic in pari materia with the concept of an economic holding under the Tenancy Act by sec. 2(6) lands are classified in the four different categories. Two of those categories are (1) perennially irrigated lands; and (2) seasonally irrigated lands. The Explanation to sec. 2(6) of the Ceiling Act indicates that whether for perennially irrigated or seasonally irrigated there is one definite concept viz. that the irrigated land must be assured of supply of water. The supply of water might be assured for 10 months or more in a year or less than 10 months but more than four months between 15th September to the end of February of the succeeding year. It is therefore clear that in order to amount to irrigated land must be assured of supply of water from a canal so far as the facts of the present case are concerned.