LAWS(GJH)-2005-3-79

BHIKHUBHAI K PATEL Vs. STATE OF GUJARAT

Decided On March 07, 2005
BHIKHUBHAI K.PATEL Appellant
V/S
STATE OF GUJARAT Respondents

JUDGEMENT

(1.) The short facts of the case are that the petitioner was holding various lands. The Mamlatdar and ALT considered the matter under the Gujarat Agriculture Lands Ceiling Act, 1960 ( hereinafter referred to as the "Act") and found that the number of members in the family are three and, therefore, the petitioner is entitled to one unit. So far as mother and daughter are concerned, no separate additional units were given and in the family husband, wife, minor two sons were only considered. It was found by the Mamlatdar and ALT that the actual land held by the petitioner is admeasuring 20 acres and 33 gunthas and after conversion appropriately it would be 29 acres and 27 gunthas and 08 va, whereas the ceiling limit provided is 30 acres and as there is no surplus land held by the petitioner, the notice was withdrawn and the proceedings were dropped as per the order dated 11.7.1986. It appears that the Dy. Collector (Land Reforms) took up the matter in revision under Section 37 of the Act and concurred with the view taken by the Mamlatdar and ALT on permissibility of one unit, however, on the point of calculation and conversion of the land, it was found by the Dy. Collector that the land admeasuring 9.24 gunthas bearing Block No.661 is in the command area, showing the cultivation of sugar cane and the land is in command area on 1.4.1976 and there is irrigation facility provided for the land in question. It was also considered by the Dy. Collector that another land admeasuring 19.73 gunthas bearing Block No.663 is also in the command area and there is cultivation of sugar cane. The Dy. Collector, therefore, accordingly made the conversion of the land held by the petitioner as admeasuring 46 acres and 05 gunthas, out of which as the retainable land was 30 acres and, therefore, he declared that the land admeasuring 16 acres and 19 gunthas deserves to be declared as surplus land, but as the option was to be given to the petitioner before declaring the land as surplus land, for surrendering, the matter was remanded to the Mamlatdar only for that purpose as per the order dated 8th October, 1987 passed by the Dy. Collector. It appears that the petitioner carried the matter before the Revenue Tribunal by preferring revision application No.237/1988. The said revision came to be considered by the Tribunal and it was found by the Tribunal that one-fifth of the additional land would be more retainable in view of the number of members of the family are exceeding five namely; mother and daughter and to that extent, the Tribunal held in favour of the petitioner by allowing the petition to hold the additional land of 6 acres, totalling 36 acres. However, so far as the conversion made by the Dy. Collector on the basis of the irrigation facility of perennially irrigated land and seasonally irrigated land, the Tribunal found that the calculation is correct and no interference is required to that extent and, therefore, the Tribunal partly allowed the revision as per order dated 10.4.1992. It appears that the petitioner preferred review application being No.6/92 before the Tribunal contending that the reliance placed by the Dy. Collector and the Tribunal on the basis of canal certificate is not correct and it was submitted that the land was in the command area without irrigation as water did not reach upto the land and, therefore, there was no irrigation and assured water supply and, therefore, the said land of Block No.661 and others could not be considered as perennially irrigated land. The Tribunal considered the Review Application and found that the said aspect is already dealt with in the earlier order and, therefore, the review application was dismissed. It is under these circumstances, the petitioner has approached this Court by preferring this petition.

(2.) Heard Mr.Karadi, learned Counsel for the petitioner and Mr.Prachchhak, learned AGP appearing for the respondent authorities.

(3.) Mr.Karadi, learned Counsel appearing for the petitioner raised contention that the matter was required to be considered by the Dy. Collector even for conversion by treating the land as perennially irrigated land on the position prevailing on 4.4.1976, whereas as per the contention of the petitioner the land was irrigated for the first time in December, 1976 and, therefore, it was contended that the error is committed by the Dy. Collector while making the conversion of the land in question. Mr.Karadi, learned Counsel also submitted that such contention was raised before the Tribunal, more particularly in the Review Application, however, the said aspect is not considered. He submitted that if the land of Block No.661 is considered as nonperenially irrigated land, it would fall under the category of seasonally irrigated land and, therefore, there will not be any surplus land as one-fifth (1/5) of the unit is already ordered as additional unit by the Tribunal and, therefore, he submitted that the order passed by the Dy. Collector as well as Tribunal are illegal and deserve to be quashed and set aside.