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2005 Supreme(Guj) 147
Gujarat High Court
Judgename :Jayant Patel
BHIKHUBHAI K.PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A. 8381 of 1992
Decided On : 03/07/2005
Subject
Land Ceiling - Surplus Land Determination
Act Referred
GUJARAT AGRICULTURAL LANDS CEILING ACT : S.37
Headnote
Constitution of India, 1950 - Article 227 - Gujarat Agriculture Lands Ceiling Act, 1960 - Section 37 - Surplus land - Declaration of - Considering land perenially irrigated - Sustainability - Finding of - Dy. Collector appreciated canal certificates which provided for the irrigation facility to the land in question - Tribunal also considered the matter in revision and concurred with the finding of Dy. Collector - Contention of petitioner that no such irrigation facility was available on 01.04.1976 but was made available only in December, 1976 cannot be allowed to be raised for the first time before Court under Article 227 of Constitution more particularly when it is a mixed question of law and fact - That apart in view of revenue record there was cultivation of sugar cane over the land in question, therefore, even if canal certificates are not relied upon result cannot be changed - The petitioner has, therefore, failed to point out any jurisdictional error or that finding is perverse to the record - Court, therefore, has no jurisdiction normally to interfere in the order passed by authority.
Held :
The perusal of the orders passed by both the Authorities shows that no such contention is raised on the ground that there was no irrigation facility as on 01.04.1976, even if the land was in a cammand area of canal. The perusal of the order passed by the Tribunal, more particularly at para 6, shows that there were two canal certificates at page No. 98 and No. 103 in the compilation before the Tribunal. The Dy. Collector appreciated both the certificates and placed reliance upon the certificate which provided for the irrigation facility to the land in question. The Tribunal considered the matter in revision and concurred, on the re-appreciation of the documents on record of canal certificate, with the view taken by the Dy. Collector and it has been recorded that there is no reason to disassociate from the conversion as the Dy. Collector has relied upon the canal certificate. In absence of any such contention having been raised before the lower authority that there was no irrigation facility available on 1.4.1976, but was made available in December, 1976, the petitioner cannot be allowed to raise such contention for the first time in a petition under Article 227 of the Constitution, more particularly when it is a mixed question of law and fact. Further, upon appreciation of the evidence by both the authorities, out of the two certificates, one certificate of Canal Officer showing that the irrigation facility was provided to the land bearing Block No. 661 is relied upon. The aforesaid is coupled with the aspects that as per the revenue record, there was cultivation of sugar cane over the land in question. Therefore, even if the contention of the petitioner is to be examined on the aspects that the canal certificate upon which the reliance is placed by the Dy. Collector ought not to have been considered and the another certificate should have been relied upon, the same results into re-appreciation of evidence which normally would not be undertaken by this Court while exercising power under Article 227 of the Constitution of India. [Para 4]
Law Laid Down :
Unless it is demonstrated that the jurisdictional error or serious error apparent at the face of record committed or finding is perverse to the record, this Court normally cannot interfere in exercise of its discretionary jurisdiction.
Case Referred :
Amratlal Bhikhabhai Patel vs. State of Gujarat & Anr., 1994 (1) GLR 637 = 1994 (1) GCD 107 (Guj.).
Decided in Favour of :
Non-Petitioner
Petition Dismissed
( 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 Cou
