The petitioner has to establish that he was not in possession of land in excess of the ceiling limit on the date of the agreement to sell by producing relevant and material evidence.

ORDER :

S.K. Keshote, J.

Heard learned counsel for the parties. The petitioner filed this petition under Article 227 of the Constitution of India and challenge is made herein to the order dated 15-10-80 of the Gujarat Revenue Tribunal made in Revision Application No. Ten. B.S. 219/79.

2. The facts giving rise to the present petition, in brief, are as under:

The matter has arisen out of the proceedings initiated under the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as the Act 1960). The petitioner, amongst other agricultural lands, owns land comprising of Survey No. 534 admeasuring 6 acres 22 gunthas at village Rohina, Taluka Pardi. The petitioner has entered into an agreement of sale of the said land on 2nd December 1966 in favour of Shri Nariman K. Patel for a consideration of Rs. 8,000/-. Rs. 3,000/- was stated to be paid as earnest money towards the sale consideration and in lieu thereof, the petitioner had put into possession of the land to the alleged purchaser. It is not in dispute that registered sale deed in favour of Shri Nariman Patel was executed in respect of this land by the petitioner on 6th May, 1972. The Act 1960 was amended by the Amending Act 19/4 which came into force on 1st April 1976 whereby it reduced the ceiling area and the petitioner was thereupon required to make an application u/S. 8(2) of the said Act for a declaration that the transfer effected by the petitioner was not made in order to defeat the object of the said Act. The application filed by the petitioner was rejected by the Deputy Collector, Bulsar under the order dated 7-3-77. On revision, the matter has been remanded back to the Dy. Collector, Bulsar, the Tribunal under its order dated 10th February 1978. The Dy Collector, under its order dated 30th April 1979, again held that the transfer was made by the petitioner with a view to defeat the purpose of the Act. The matter was taken up by the petitioner in revision before the Tribunal by filing Revision Application which came to be dismissed vide order dated 15-10-80. The Tribunal has confirmed the order of the competent authority.

3. The learned counsel for the petitioner challenging the order of the Tribunal made two fold submissions. Firstly it is contended that the day on which the petitioner agreed to sale the land in dispute he was not in possession of the land in excess of the ceiling limit and as such, both the authorities below have committed serious illegality in holding that the sale has been effected with the purpose and object to defeat the provisions of the Act 1960 as amended by the Act 1974. In support of this contention, the learned counsel for the petitioner placed reliance on decision of this Court in Special Civil Application No. 631 of 1981 decided on 1-8-91. It has next been contended that the Tribunal has committed a serious error of jurisdiction in holding that the petitioner has tailed to discharge legal fiction as created u/S. 8 of the Act 1960.

4. On the other hand, the learned counsel for the respondent contended that first ground has been taken by the petitioner for the first time before this Court. The petitioner has not raised this objection either before the competent authority are before revisional authority on the first occasion where the matter was remanded back and on the second occasion also. It has next been contended that even in the original Special Civil Application, this point has been incorporated only after making amendment in Special Civil Application. So far as the second point is concerned, the learned counsel for the respondent contended that the Tribunal has decided on the question of facts and it has confirmed the findings recorded by the competent authority. It is a case where no interference is called for by this Court, with the findings recorded by the authorities below, sitting under Article 227 of the Constitution.

5. I have given my thoughtful considerations to the submissions made by the learned counsel for the part