Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Guj) 816

2008 (2) GCD 1656 (Guj)
Hon’ble Mr. Justice K.M. Thaker
State of Gujarat & Anr. [Gandhinagar]
Versus
Gujarat Revenue Tribunal & Anr.
Special Civil Application No. 6306 of 1997—Decided on 24/12/2007

Advocates Appeared:
Mr. Trusha Patel, Asst. Government Pleader for the Petitioners.
Rule Served, for the Respondents.
Mr. L.N. Medipally, for the Respondents.

Important Point :
Whether Tribunal is justified in accepting revision merely on account of procedural defect?

Headnote:Gujarat Agricultural Lands Ceiling Act, 1960 —Sections 38 and 38(1) — Bombay Tenancy and Agricultural Lands Act, 1948 — Section 76(1) —Land —Holding of —Excess of ceiling limit — Considering fragmentation withdrawal of notice — Suo motu revision order to vest excess land in Government — Sustainability — Mamlatdar and ALT found 20 Gunthas of land in excess of ceiling limits in the hands of land holder respondent but allowed the land holders to keep the entire land because otherwise it was to result into fragmentation — Deputy Collector exercising Suo motu revisional powers held 8 Gunthas and 14 Gunthas from two survey numbers of excess land in the hands of landholder and declared that such excess land to vests in Government — Respondent approach the Tribunal by way of revision and Tribunal allowed the revision on ground that Deputy Collector while exercising suo motu powers of revision received evidence without jurisdiction Court held that though the Tribunal found the procedure adopted by Deputy Collector objectionable and without jurisdiction but that was not though to set aside order of Deputy Collector — Tribunal before setting aside the order of Deputy Collector must have addressed the question whether in view of procedure adopted by Deputy Collector the finding by Deputy Collector in his order resulted in miscarriage of justice — Tribunal ought to have decided the same independent of addition evidence by Deputy Collector — Court, therefore, set aside the impugned order of Tribunal and remanded the matter to Tribunal to independently decide the revision on its own merit.
       Held :
       I am inclined to accept the petition and to hold that though the respondent Tribunal found the procedure adopted by the Deputy Collector objectionable and without jurisdiction, the learned Tribunal ought to have addressed and replied, before exercising the revisional jurisdiction and setting aside the order dated 29.04.1989, the issue whether the findings by the Deputy Collector in his said order resulted in miscarriage of justice and the learned Tribunal also ought to have decided the issue, independent of such additional evidence and on merits. [Para 14]
       In view of the aforesaid discussion, the impugned order dated 12.08.1992 is set aside. The matter is remanded to the respondent Tribunal. It is clarified that the aforesaid discussion and observations are only prima-facie and they are not to be construed to mean that the finding of fact by the Deputy Collector is approved by this Court in this order. The respondent Tribunal shall independently decide the revision application preferred by the Respondent No. 2 on its own merits. [Para 15]
       Petition Allowed

Judgment

K.M. Thaker, J.—In this petition, the State Government has challenged the order dated 12.08.1992 passed by the Respondent No. 1 — Gujarat Revenue Tribunal in Revision Application No. TEN.B.S.184 of 1989 whereby, the respondent-Tribunal allowed the revision application preferred by Respondent No. 2 and set aside the order passed by the Deputy Collector and restored the order passed by the Mamlatdar and ALT.

2. The facts giving rise to this petition are as follows :—

2.1. In 1976 one Shri Gulam Mahmud Rasul filed, in view of the provisions of Gujarat Agricultural Lands Ceiling Act, 1960, Form No. 2 declaring his total holding of agricultural land. According to the details given in the said Form, it was declared that he was holding land admeasuring 16-Acres and 20-Gunthas.

2.2. The Mamlatdar and ALT took up the matter and passed order declaring that the total holding of the land holder would come to 37-Acres and 5-Gunthas of “dry crop land”. The said authority declared that 1-Acre and 5-Gunthas was surplus land.

2.3. The land holder being aggrieved by the said order carried the matter in appeal before the Deputy Collector, who, by an order dated 27.06.1982 allowed the appeal and remanded the matter to the Mamlatdar and ALT for rehearing. The said order is not on record, therefore, it is not possible to ascertain the ground on which the appeal was allowed.

2.4. After the remand, the Mamlatdar and ALT held retrial and by an order dated 24.12.1986 again concluded that there was excess holding of 1-Acre and 5-Gunthas by the said land holder and upon conversion of said land into seasonally irrigated land, the excess land worked out to 20-Gunthas and that it was to be taken out from Survey No. 269 of village Pipadara.

2.5. The said land holder, being aggrieved by the said order dated 24.12.1986, took the matter in appeal and the Deputy Collector allowed the appeal and remanded the matter to Mamlatdar and ALT. Around this time, somewhere in September-1987, the said land holder i.e. Shri Gulam Mahmud Rasul expired.

2.6. Then, pursuant to the remand by virtue of order dated 24.12.1986, the Mamlatdar and ALT passed an order dated 11.01.1988 wherein, the said authority, inter alia, found himself in agreement with the conclusion that 20-Gunthas of land was excess land. However, he deferred in his decision from that stage onwards inasmuch as he, in the said order dated 11.01.1988, proceeded to hold that if the land admeasuring 20-Gunthas was taken out of Survey No. 269, then it would result into fragmentation and, therefore, he decided to allow the land holder to keep the entire parcel of land i.e. Survey No. 269. On such decision, he directed that the notices issued to the land holder be withdrawn.

2.7. Subsequently the Deputy Collector, exercising suo-motu revisional powers, took the judgment and order dated 11.01.1988 in revision, which was registered as Revision Case No. 222 of 1988. The said authority issued notices to the land holder, who attended the hearing and made submissions. After hearing the parties, the Deputy Collector passed an order dated 29.04.1989 declaring that Survey Nos. 207/4 and 207/5 admeasuring 8-Gunthas and 14-Gunthas respectively were excess lands in hands of the land holder. He, therefore, declared that such excess land vests in Government.

2.8. Obviously, the land holder was aggrieved by the said order of the Deputy Collector and that therefore, under the provisions of Section 38 of the Act, he approached the respondent-Tribunal against the said order dated 29.04.1989.

2.9. Thereafter, the respondent-Tribunal heard the revision application and for the reasons recorded in the order dated 12.08.1992, allowed the revision application by setting aside the order dated 29.04.1989 by the Deputy Collector and restoring the order dated 11.01.1988 by the Mamlatdar and ALT.

2.10. It is against the said order that the present petitioner has approached this Court.

3. Heard Ms. Trusha Patel, learned AGP for the petitioner State an

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2007 Supreme(Guj) 816

2008 (2) GCD 1656 (Guj)Hon’ble Mr. Justice K.M. ThakerState of Gujarat & Anr. [Gandhinagar] VersusGujarat Revenue Tribunal & Anr.Special Civil Application No. 6306 of 1997—Decided on 24/12/2007

Important Point :Whether Tribunal is justified in accepting revision merely on account of procedural defect?

2008 (2) GCD 1656 (Guj)
Hon’ble Mr. Justice K.M. Thaker
State of Gujarat & Anr. [Gandhinagar]
Versus
Gujarat Revenue Tribunal & Anr.
Special Civil Application No. 6306 of 1997—Decided on 24/12/2007

Important Point :
Whether Tribunal is justified in accepting revision merely on account of procedural defect?