DALPATBHAI JASRAJ DALWADI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The short facts of the case are that the father of the petitioners executed a document of usufructuary mortgage on 16.1.1951 for the land admeasuring 5 acres and 11 gunthas with one Nanji Magha Dalwadi and the land was mortgaged for 99 years for borrowing Rs.6,000/-. The father of the petitioners expired on 22.7.1976. On 14.8.1976, the Gujarat Rural Debtor's Relief Act, 1976 (hereinafter referred to as the Act) came into effect. The petitioner applied to the Debt Settlement Officer for relief under the Act and on 26.5.1978, the Debt Settlement Officer decided in favour of the petitioners by relieving the petitioners from debt. The appeal was preferred against the decision of the Debt Settlement Officer by respondent No.3 and the said appeal came to be dismissed on 26.10.1979. The matter was further carried before this Court by respondent No.3 by preferring SCA No.44 of 1980 and this Court (Coram: C.V. Jani, J.) on 27.7.1990 passed the judgement, whereby it observed, inter alia, that whether the land was an irrigated land or not is not properly examined by the officer concerned so as to satisfy the requirement of small and marginal farmer and, therefore, the matter was remanded to the concerned officer for his decision. It appears that thereafter once again the matter was considered by the Debt Settlement Officer and as per the decision dated 14.5.1976 the Debt Settlement Officer found that there was no permanent irrigation facility over the land and, therefore, the land cannot be treated as irrigated land and found that the holding of the petitioner is below the prescribed limit and vide order dated 14.5.1996, the Debt Settlement Officer relieved the petitioners from the debt and further directed for relieving of the land and also observed that for the recovery of the income of the crop exceeding the amount double than the principle loan amount, the claimant will be required to undertake separate appropriate proceedings. It appears that thereafter the matter was carried in appeal being Appeal No.1/1996 and in the appeal the Appellate Officer found that the land was an irrigated land and, therefore, the limit of holding by the petitioners would exceed the prescribed limit and, therefore, they are not small and marginal farmers. Even on the aspects of income, the Appellate Officer observed that there was also other additional income and, therefore, livelihood of the petitioners were not only dependent upon the agricultural income and ultimately the appeal came to be allowed as per the decision dated 16th September, 1996. It is under these circumstances the petitioners have approached this Court by the present petition.

(2.) Heard Ms.Jani, learned Counsel for the petitioners, Mr.Raval, learned Counsel for the private contesting respondent No.3 and Mr.Soni, learned AGP for respondents No.1 and 2.

(3.) It was contended on behalf of the petitioners by the learned Counsel that the income limit is applicable to only rural artisans and it does not apply to the small and marginal farmers as per the Scheme of the Act and, therefore, there is an error committed by the Appellate Officer in relying upon the income of the petitioners.