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Kashiben Ambalal Chhotalal Patel and ors. Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 705 of 1969
Judge
Reported inAIR1971Guj224; (1971)GLR540
ActsTenancy Laws; - Gujarat Agricultural Lands Ceiling Act, 1960 - Sections 2(15), 6(2), 13 and 20(2); - Gujarat Agricultural Lands Ceiling (Amendment) Act, 1961
AppellantKashiben Ambalal Chhotalal Patel and ors.
RespondentThe State of Gujarat and anr.
Appellant Advocate V.J. Desai, Adv.
Respondent Advocate B.J. Shelat, Asst. Govt. Pleader,; R.M. Gandhi, Adv. of;
Excerpt:
.....act without issuing notice - whether petitioner entitled to notice - by virtue of section 6 all lands held by individual members could be clubbed together to ascertain excess land - petitioners entitled to notice - subsequent proceedings under sections 20 and 21 ineffective due to absence of notice - findings of tribunal quashed and set aside. - - ambalal also preferred revision application before the revenue tribunal, ahmedabad, but failed there also. the rest of the contentions raised by the petitioners in this petition are covered by one or the other judgment of this court as well as the supreme court and, therefore, they were neither pressed nor raised during the course of the arguments. the main definition clause of the expression 'to hold land' clearly indicates that 'to..........a family and land is also separately held by such individual's spouse or minor children, then the land held by the individual and the said members of the individual's family shall be grouped together for the purposes of this act. in view of these provisions of sub-section (2) of section 6, the land held by the petitioners were grouped together with the land held by ambalal and it was on account of this grouping that the tribunal found that ambalal was holding surplus land admeasuring 48 acres and 36 gunthas. it is found from the record of the case that ambalal thereafter filed appeal which was decided against him by the assistant collector, rajpipla. ambalal also preferred revision application before the revenue tribunal, ahmedabad, but failed there also.4. in this petition, the.....
Judgment:

Mehta, J.

1. The petitioners in this matter are the family members of one Ambalal Chhotalal Patel, and the point which is raised by them in this petition is whether the lands admeasuring 48 acres and 36 gunthas found surplus under the Gujarat Agricultural Lands Ceiling Act, 1960, (hereinafter referred to as 'the Act'), can be acquired without issuing the notices to them under sub-section (2) of Section 20 of the said Act.

2. Short facts relating to this petition are that Ambalal Chhotalal Patel is the husband of petitioner No. 1 and the father of petitioners Nos. 2 and 3. It is said that various lands held by Ambalal Chhotalal Patel were partitioned as early as 30th July, 1956 by a regular deed of partition, which was also registered. After the said partition, relevant entries were made in the Record of Rights and were certified on or about 24th February, 1958.

3. Thereafter Gujarat Agricultural Lands Ceiling Act, 1960 came into force on 24th August, 1961. The lands in question situated in Padvania village, taluka Jhagadia in Broach District. The ceiling fixed under the Act is 84 acres. Proceedings were taken by the Authorities concerned under the said Act and during the course of these proceedings, it was found that said Ambalal Chhotalal Patel was holding surplus land admeasuring 48 acres and 36 gunthas. This surplus was found after applying the provisions of Section 6(2) of the Act, which says that where an individual, who holds land, is a member of a family and land is also separately held by such individual's spouse or minor children, then the land held by the individual and the said members of the individual's family shall be grouped together for the purposes of this Act. In view of these provisions of sub-section (2) of Section 6, the land held by the petitioners were grouped together with the land held by Ambalal and it was on account of this grouping that the Tribunal found that Ambalal was holding surplus land admeasuring 48 acres and 36 gunthas. It is found from the record of the case that Ambalal thereafter filed Appeal which was decided against him by the Assistant Collector, Rajpipla. Ambalal also preferred Revision Application before the Revenue Tribunal, Ahmedabad, but failed there also.

4. In this petition, the petitioners have raised many contentions but the only contention which is pressed by the petitioners is that the land found surplus cannot vest in the Government so long as the notice contemplated by sub-section (2) of Section 20 of the Act is not served on them. The rest of the contentions raised by the petitioners in this petition are covered by one or the other judgment of this court as well as the Supreme Court and, therefore, they were neither pressed nor raised during the course of the arguments. In view of this position, we shall straightway consider the relevant provisions of the Act with a view to decide whether the notice contemplated by sub-section (2) of Section 20 of the Act was required to be given to the petitioners.

5. Section 20 of the Act contemplates publication of the list and notices to persons affected by the list prepared under Section 13 of the Act. In order to understand the provisions contained in Section 20 and 13, reference will be required first to be made to Section 10 which contemplates that the holder of the lands in excess of ceiling should furnish particulars of the land held by them to the concerned Mamlatdars. This section is in the following terms:

'10 (i) Every person holding land (including exempted land if any) in excess of the ceiling area whether as owner or tenant or partly as owner and partly as tenant on or after the appointed day shall in respect of all the lands including exempted land, if any, held by him, furnish within a period of ninety days from the appointed day to each of the Mamlatdars in whose jurisdiction any piece of such land is situate, a true statement specifying:

(1) particulars of all lands including their survey numbers and areas:

(2) particulars of all exempted lands, if any, including their survey numbers and areas;

(3) particulars of all lands held as owner;

(4) particulars of all lands held as tenant;

(5) particulars of all the encumbrances, if any, over the lands together with the names and addresses of the creditors;

(6) particulars of lands held as a member of a joint family along with their survey numbers and area; and

(7) such other particulars, if any, as may be prescribed.'

After the list, which is contemplated by Section 13, is prepared, provisions of Section 20 contemplate the publication of the list and notice to the persons affected thereby. For the purpose of this petition we are concerned only with sub-sections (1) and (2) of Section 20 which are in the following terms:

'20(1). As soon as may be after the list is prepared under Section 13, Tribunal shall publish it in the prescribed manner together with a public notice in the prescribed form calling upon all persons affected thereby to submit to the Tribunal their objections or suggestions if any, within a period of one month from the date of its publication.

(2) As soon as may be after the publication of the list under sub-section (1) the Tribunal shall also serve a notice in the prescribed form on each holder of surplus land included in the list: -

(a) specifying therein the extent of surplus land held by him and the maximum area of land which he is entitled to hold out of the total land by him on the appointed day, and

(b) calling upon such person -

(i) to submit within one month from the date of the service of the notice to the Tribunal any objections or suggestions to the particulars given in the notice.

(ii) to select upto such maximum area and subject to the order of preference mentioned in sub-section (3), the piece of land which he wishes to continue to hold, and

(iii) to furnish to the Tribunal within the said period of one month the particulars in the prescribed form of the piece or pieces of land so selected.'

6. Now the contention of the petitioners is that according to sub-section (2) of Section 20. Tribunal is bound to serve a notice in prescribed form on each of the holders of the surplus land included in the list and if such a notice is not served on each of the holders then further proceedings contemplated by clause (b) of sub-section (2) of Section 20 would be vitiated. It was contended on behalf of the petitioners that they are the persons who were holding lands separately according to the mutation entries found in the Record of Rights and since the lands were likely to be affected on account of the selection made by Ambalal, as contemplated by Section 20(2)(b)(ii), it was incumbent on the Tribunal to serve such notices on them before proceeding further in the matter.

7. In reply to this contention, it was contended by Shri Shelat, who appeared on behalf of the respondents, that according to Section 6(2) the lands held by an individual or individual's spouse or minor children, are required to be grouped together for the purpose of deciding the ceiling area and, therefore, such an individual is the only person to whom the notice contemplated by sub-section (2) of Section 20 should be served. In support of his contention, Shri Shelat pointed out that looking to the special provisions about the clubbing of the land held by an individual or individual's spouse or minor children, as contained in sub-section (2) of Section 6, it is only that person who can be said to be holder of surplus lands and, therefore, if a notice contemplated by sub-section (2) of Section 20 is served on such a person, no further notice is required to be served either on the spouse or minor children of that person.

8. Considering the provisions contained in Section 20 and other relevant provisions of the Act, to which we shall presently refer, we are of the opinion that the contention raised by Shri Shelat, on behalf of the respondents, is not acceptable. Before discussing the provisions contained in sub-section (2) of Section 20, it would first be necessary to consider the scope of the clubbing of the land contemplated by sub-section (2) of Section 6. Section 6 provides for the ceiling on holding land. Sub-section (i) thereof says that notwithstanding anything contained in any law for the time being in force or in any agreement, usage or decree or order of a court, with effect from the appointed day, no person shall be entitled to hold, whether as owner or tenant, or partly as owner and partly as tenant, land in excess of the ceiling area. Sub-section (2), which is relevant for the purpose of this petition, is in the following terms:

'(2) Where an individual, who holds land, is a member of a family, not being a joint family, and land is also separately held by such individual's spouse or minor children, then the land held by the individual and the said members of the individual's family shall be grouped together for the purposes of this Act and the provisions of this Act shall apply to the total land so grouped together as if such land had been held by one person.'

It is clear from these provisions of sub-section (2) that they are enacted only with a view to determine the lands held in excess of a particular ceiling. The intention behind the provisions contained in sub-section (2) of Section 6, obviously, is that if members of the same family are holding lands in the names of different members of the family, all the lands held by individual members of the family can be clubbed together for the purpose of deciding whether there is an excess over the prescribed ceiling. Sub-section (2) does not in any manner curtail the substantive rights of the individual members of the family. Clubbing together of the lands held by different members of the family is obviously with a view to decide an excess, if any, over the prescribed ceiling. Therefore, this sub-section cannot be read as curtailing the ownership rights over the individual holdings standing in names of different family members. This being the correct interpretation of sub-section (2) of Section 6 of the Act, the act of clubbing together of the lands held by individual members of the family for the purpose of deciding an excess over the prescribed ceiling cannot be carried further. Argument of Shri Shelat that the individual whose land as clubbed together with the lands held by his or her spouse and minor children should be treated as the 'holder of the land so clubbed together' for the purpose of Section 20, cannot be entertained as correct because neither sub-section (2) of Section 6 nor any other provision of the Act, encroaches upon the ownership rights of the individual members of the family over the land held by each of them.

9. Now coming to Section 20, a reference to sub-section (2) thereof shows that as soon as the list contemplated by Section 13 is published. Tribunal should serve notice 'on each holder of surplus land included in the list'. The question is, what is meant by the expression 'holder of surplus land'. Section 2 clause (15) of the Act described the expression 'to hold land' as under:

'(15). 'to hold land' with its grammatical variations and cognate expressions means to be lawfully in actual possession of land as owner or tenant, as the case may be.'

There is a proviso attached to this definition with regard to the land mortgaged with possession. For the purpose of this petition, we are not concerned with this proviso. The main definition clause of the expression 'to hold land' clearly indicates that 'to hold land' is to be lawfully in actual possession of the land as owner or tenant, as the case may be. Therefore, if individual members of a family are found to be the owners of the lands, and holding such lands as such, and are also found to be in actual possession thereof, they would be covered by the above mentioned definition and, therefore, for the purpose of sub-section (2) of Section 20, they would be the holders of surplus lands included in the list contemplated by Section 13 of the Act. Under these circumstances, we find that the notice contemplated in sub-section (2) of Section 20, should be issued to all the members of the family, who are holding land in their individual capacity in spite of the fact that the lands held by them are grouped together for the purpose of determining an excess over the prescribed ceiling under sub-section (2) of Section 6.

10. If we consider the scheme of the Act and the further proceedings contemplated by Sections 20 and 21, we get further support to the view which we are taking on the interpretation of the expression 'holder of surplus land' used by sub-section (2) of Section 20. If in this connection a reference is made to the clause (b) of sub-section (2) of Section 20, it would be found that the person to whom the notice is issued, is called upon to select a piece or pieces of land he wishes to continue to hold. The result of such a selection would be that the land which is not so selected would become liable to be acquired under the Act. There is no provision either in Section 20 or any where else in the Act to compel the individual concerned to limit his choice under clause (b) of Section 20(2) only to the land held by him. Therefore, there would be case in which the said individual would select to continue to hold only those pieces of land which belong to him. This would result in acquisition of the land which is actually held not by him but by his spouse or minor children. In other words, the result would be that the individual concerned would be invested with a right to preserve his own holding at the cost of the holding of his spouse and minor children. If relations of such an individual with his spouse or minor children are strained for any reason, it would be easy for him to sacrifice their interest and to preserve his own, Legislature cannot be presumed to have intended to enable a person to profit at the cost of another without the other having any knowledge about the same. If sub-section (2) of Section 20 is construed in a manner which would require the Tribunal to give notice only to the individual whose land is grouped together with the lands of his spouse or minor children, then obviously the ownership rights of the spouse as well as the minor children over the lands individually held by them would be put in jeopardy without any notice to them. We, therefore, hold that an correct interpretation of sub-section (2) of Section 20, every member of the family whose holding is grouped together with other members of the same family under Section 6(2) should be called upon by a proper notice to make submissions and selection contemplated by sub-clauses (i), (ii) and (iii) of Section 20(2)(b).

11. Shri Shelat, who appeared on behalf of the respondents, contended that if sub-section (2) of Section 20 is construed in the manner in which we do, every individual, his spouse and minor children would be induced to put forward conflicting claims as regards the selection of the land which he or she wishes to continue to hold and that if this happens it is likely to frustrate the object of the Act. We find that even if this happens, the purpose of the Act would not be defeated for the simple reason that Section 21 of the Act empowers the Tribunal to make order declaring the surplus land and consequences thereof. According to this Section 21, the Tribunal, after taking into consideration the objections and suggestions, if any received, and the particulars if any, furnished, under Section 20, and making such further inquiry, if any, as it thinks fit, shall make in respect of such holding of surplus land an order declaring in particulars;

'(i) the total land held by him on the appointed day,

(ii) which land out of the total land is surplus and,

(iii) which land out of the total land he is entitled to hold.'

Thus even if different members of a family put forward different and conflicting claims as regards the selection contemplated by Section 20(2)(b)(ii), the Tribunal can come to its own decision about the surplus land and the consequences thereof under Section 21 of the Act.

12. Under these circumstances, we are of the opinion that the petitioners, who are holding different parcels of land as shown in the certified entries of the Revenue Record, were entitled to notices contemplated by sub-section (2) of section 20 of the Act. Since these notices are admittedly not given to them, subsequent proceedings contemplated by Sections 20 and 21 and other Sections of the Act, are rendered ineffective so far as these petitioners are concerned. We therefore, allow this petition and quash and set aside the orders found at Exs. 'A', 'B' & 'C' annexed to this petition. It would be open to the Agricultural Land Tribunal, to proceed under Section 20 of the Act after serving notices in the prescribed form as contemplated by sub-section (2) of Section 20 of the Act to the present petitioners and to come to a proper decision as regards the surplus land and consequences thereof. In view of the peculiar circumstances of the case, there shall be no order as to costs of this petition.

13. Order accordingly.


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