St. Xavier'S Kelavani Mandal vs State Of Gujarat
2023 Latest Caselaw 667 Guj

    C/SCA/12148/2002                             CAV JUDGMENT DATED: 25/01/2023




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 12148 of 2002

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                   sd/-
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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2      To be referred to the Reporter or not ?                         YES

3      Whether their Lordships wish to see the fair copy                NO
       of the judgment ?

4      Whether this case involves a substantial question                NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== ST. XAVIER'S KELAVANI MANDAL Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:

MR JITENDRA M PATEL(620) for the Petitioner(s) No. 1 MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,3

========================================================== CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 25/01/2023 CAV JUDGMENT

1. The present writ petition has been filed challenging the judgment and order dated 23.10.2002 passed by the Presiding Officer, Gujarat Revenue Tribunal, Ahmedabad in Revision Application No.TEN.B.A.207/2001, order dated 02.04.2001 passed by the Deputy Collector, Vadodara in Ceiling Revision Application No.2 of 2000, and also the order dated 08.05.2022 passed by the Mamlatdar & ALT, Vadodara passed in Ceiling Remand Case No.117 of 1988.

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2. At the outset, learned advocate Mr.Jitendra Patel, appearing for the petitioner has submitted that the aforesaid order was challenged by taking shelter from the judgment and order dated 11.10.2000 & 20.10.2000 passed by Division Bench of this Court in Letters Patent Appeal No.597 of 2000 in Special Civil Application No.4015 of 1990, which has been subsequently reversed by the Apex Court vide judgment reported in the case of State of Gujarat and another Vs. Manoharsinh Pradyumansinhji Jadeja, in 2013 (2) SCC 300.

2.1 It is thus submitted that presently, the petitioner - Trust is confining the issue with regard to status of non-agricultural land at Khatamba in Vodadara. He has referred to the order dated 25.08.1976 passed under the Urban Land (Ceiling and Regulation) Act, 1976 giving exemption under section 20 of the Act. It is submitted that since permission was given for the use of non-agricultural purpose, the provisions of the Gujarat Agricultural Lands and Ceiling Act, 1960 would not be applicable. It is submitted that the petitioner-Trust applied for developing the land vide application dated 01.09.1994 and has also paid the necessary development charge. He has placed reliance on further affidavit filed by the petitioner producing a sale deed dated 12.02.1965 in support of his submissions. It is submitted that the sale deed dated 12.02.1965 reflects that the land in question has been used by the petitioner for non- agricultural purpose, as per the order of the District Collector, Vadodara dated 02.01.1965 and no agricultural activities are carried out in the piece of land and hence, while referring to the object and purpose of the Gujarat Agricultural Land and

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Ceiling Act, 1960, (for short, "the Act of 1960"), it is submitted that the provisions would not be applicable to the land in question since the petitioner-Trust is not holding any excess land.

2.2 Learned advocate Mr.Patel, has placed reliance on the judgment in the case of Adambhai Sulemanbhai Desai, Chairman, Desai Co-operative Housing Soc. Ltd., Dhandhuka vs. State of Gujarat, 2004 (1) G.L.R. 906. Reliance is also placed on the judgment of this Court in the case of M/s.Jailaxmi Estate and Anr. vs. State of Gujarat and Ors., AIR 1994 Gujarat

38. Further, reliance is placed on the judgment passed by this Court in the case of Ravichand Manekchand Sheth and ors. Vs. State of Gujarat and ors. [2006 (2) GLR 1567] and finally, he has placed reliance on the judgment of the Apex Court in the case of Harpal Singh vs. Ashok Kumar and Anr., [AIR 2017 SC 5852. Thus, it is submitted that the impugned order passed by the Tribunal may be set aside.

2.3 Learned advocate Mr.Patel, has also placed reliance on the various photographs / documents, which are annexed to the present writ petition indicating that the land in question is not used for agricultural purpose but it is used for plantation and nursery etc.

3. In response to the aforesaid submissions, learned AGP Mr.Kanara, has submitted that the petitioner, for the very first time has raised such a contention before this Court and neither before the Tribunal nor before any authorities, such issue with regard to non-applicability of the provisions of the Gujarat Agricultural Land and Ceiling Act, 1960, was raised.

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3.1 Learned Assistant Government Pleader has further submitted that the entire writ petition was premised on the judgment of the Division Bench dated 11.10.2000 / 20.10.2000 passed by this Court in Letters Patent Appeal No.597 of 2000, which has been subsequently reversed by the Supreme Court in the case of Manoharsinh Pradyumansinhji Jadeja (supra). It is submitted that the Supreme Court has categorically held that once the Urban Land (Ceiling and Regulation) Act, 1976 came to be repealed, whatever constitutional embargo that was existing as against the Act of 1960 i.e. the Gujarat Agricultural Land and Ceiling Act, 1960 as well as the Amendment Act, 1974, ceased to exist and the Ceiling Act would operate in full force. It is submitted by the learned AGP that before the Tribunal, the petitioner-Trust has premised their case on the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and has submitted that the provisions of the ULC Act would be apply where the State Act is in conflict with the Central Act. Thus, it is submitted that since the new round is raised before this Court, the writ petition may not be entertained.

4. I have heard the learned advocates appearing for the respective parties. I have also perused the documents as well as photographs as relied by the learned advocate for petitioner.

5. Being aggrieved by the order passed by Deputy Collector, Vadodara in Ceiling Revision Application No.2 of 2000, confirming partially the order dated 08.05.2000 passed by the

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Mamlatdar & ALT, Vadodara declaring an area of 14-77-89 Hec.-Are-Sq.mtrs. as surplus in Ceiling Remand Case No.117 of 1998, the petitioner-Trust filed Revision Application No.TEN.B.A.207/2001 before the Gujarat Revenue Tribunal. After hearing the respective parties, the Tribunal partly allowed the revision application by observing thus : -

"9(3) I now examine the legality of the order passed by the Dy. Collector in so far as it relates to the direction to take over the Kalol lands as surplus land. Even though the Dy. Collector has given the reason that the land is shown to be agricultural land in the village records and that it was purchased without permission of the Collector under sec. 63 of the Tenancy Act, he has lost sight of the other important facts brought out in the Mamlatdar's order that the lands are situated in an urban (Municipal) area, and that under the AUDA development plan it is reserved for residential area and that the land is used for the purpose of school and play- ground. The reasons given by the Dy. Collector for giving direction to the Mamlatdar to include the Kalol lands for declaration of surplus do not therefore appear to be proper. I also feel that it is contrary to law, since even under the Ruling cited by the learned SGP, GRTLR (1992), page 186 of (Hon. Justice R.K. Abhichandani), where no appeal has been filed by the State Government the Dy. Collector could not have passed an order to include additional land as surplus in a suo-moto revision proceeding.

9(4) l also find that the applicant has filed an application dated 8.2.2002 presented on the last day of hearing, requesting this Tribunal to take note of an application given to the Collector for considering exemption to be granted to the Trust from the provisions of the Ceiling Act as provided in Sec. 3 of the Ceiling Act. He has also produced a copy of the order passed by the Collector dated 31.12.2001/7.1.2002 in which the Collector has stated that the application for exemption under sec. 3 of the Ceiling Act cannot be considered pending disposal of the Ceiling Revision Application filed by the applicant- Trust before this Tribunal. Since this is not a final disposal of the application by the Collector, but is only an interim intimation that he is unable to consider the application for exemption under sec. 3 as long as the revision application

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No.TEN.B.A.207/2001 is pending before this Tribunal, the applicant is free to move the Collector again with reference to his application for exemption under sec. 3 of the Ceiling Act.

10. In view of the foregoing, I feel that this Revision Application deserves to be partially allowed. The order of the Dy. Collector, Vadodara will have to be partially set aside in so far as his direction pertaining to the lands of Kalol (Mehsana) are concerned while confirming his order with respect to the Vadodara lands, as per orders of the Mamlatdar. Accordingly, I pass the following order.

11. Revision Application No. TEN.B.A. 207/2001 is partially allowed. The impugned order of the Dy. Collector, Vadodara in Ceiling Revision Application No. 2/2000 dated 2.4.20 is set aside and the order of the Mamlatdar & ALT, Vadodara in Ceiling No.117/88/Remand dated 8.5.2000 shall be restored."

6. The entire case of the petitioner-Trust in the writ petition is premised on the judgment and order dated 11.10.2000 / 20.10.2000 passed by the Division Bench of this Court in Letters Patent Appeal No.597 of 2000 with regard to the land situated at Khatamba, District Vadodara. The aforesaid judgment and order of the Division Bench was further challenged before the Apex Court, whereby the Supreme Court has set aside the order passed by the Division Bench vide judgment reported in 2013 (2) S.C.C. 300 in the case of Manoharsinh Pradyumansinhji Jadeja (supra). Thus, the entire issue, on which, the judgment and order of the Tribunal has been assailed is addressed by the Supreme Court.

7. When the matter is taken up for hearing today, the entire new case premised before this Court by contending that the provisions of the Gujarat Agricultural Land and Ceiling Act, 1960 will not be applicable to the case of the petitioner i.e. the

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land in question since the land is a non-agricultural and is also used for non-agricultural purpose. By filing a further affidavit by the petitioner, such a contention is raised and reliance is placed on the sale deed dated 12.02.1965 by referring to the recital of the sale deed, it is contended that the land in question has been used for non-agricultural purpose only and hence, the provisions of the Gujarat Agricultural Land and Ceiling Act, 1960 would not be applicable. Except the aforesaid sale deed, no orders passed by any of the State authorities are produced neither before the Tribunal nor before this court declaring the land at Khatamaba as non-agricultural.

8. The facts, as recorded in the impugned order passed by the Tribunal reflects that the petitioner-Trust was holding land in different parts of the Gujarat State, more particularly in Vadodara and Mehsana districts extending to a total area of 75-8 Acres-Gunthas. It is the case of the petitioner-Trust that they have obtained exemption under Section 20 read with Section 19(1)(6) of the Urban Land (Ceiling & Regulation) Act, 1976 from the State Government with respect to certain lands situated in the urban agglomeration covered by the ULC Act, under the order issued by the State Government dated 25.08.1976. On 20.04.1990, the Mamlatdar & ALT, Vadodara passed an order in Ceiling Case No.117 of 1988 declaring an area of 43-10 Acres-Gunthas as surplus for the land situated at Vadodara. An appeal was preferred before the Deputy Collector, Vadodara and by the order dated 28.02.1991 passed in Ceiling Appeal No.13 of 1990, the matter was remanded to the Mamlatdar & ALT, Vadodara with certain directions and in

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the remand proceedings, the Mamlatdar & ALT, Vadodara passed an order dated 22.04.1991 in Ceiling Case No.117 of 1988 by holding that the petitioner-Trust was not holding any surplus land. The State preferred a Revision Application against the order before the Deputy Collector, Vadodara in Ceiling Revision Application No.2 of 1991, wherein the order of the Mamlatdar dated 22.04.1991 was quashed and set aside and the matter was again remanded to the Mamlatdar.

9. Against this remanded order, a Revision Application was filed before the Tribunal, which was rejected by the judgment and order dated 26.02.1993.

10. In the remanded proceedings - Remand Case No.2 of 1993, the Mamlatdar, Vadodara held that the petitioner-Trust is entitled to hold one Ceiling Unit No.3 of 1994 and there is no declared surplus land.

11. Again the State Government preferred Revision Application No.3 of 1994, which was allowed and the matter was for the third time remanded to the Mamlatdar & ALT, Vadodara, under the order passed in Revision Application No.3 of 1994 dated 31.05.1995.

12. After this third remand order, the Mamlatdar & ALT, Vadodara again held the inquiry and by the order dated 30.03.1996 declared land admeasuring 24-77-20 Hec.-Are- Sq.mtrs. as surplus. The petitioner-Trust preferred a Revision Application before the Deputy Collector, Vadodara and in Revision Application No.7 of 1996, the Deputy Collector, Vadodara again passed an order dated nil-9-1996 remanding

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the matter to the Mamlatdar & ALT, Vadcdara. The Mamlatdar & ALT, Vadodara again conducted proceedings and by the order dated 17.4.1997 declared land admeasuring 14-77-89 Hec.-Are-Sq.mtrs. as surplus land with the petitioner-Trust. This matter was taken up in suo motu revision in Case No.16 of 1998 by the Deputy Collector, Vadodara, which was by an order dated 03.12.1999, again remanding the case to the Mamlatdar & ALT, Vadodara. On remand, Mamlatdar & ALT, Vadodara passed an order dated 08.05.2000 declaring once again the land admeasuring 14-77-89 Hec.-Are-Sq.mtrs. as surplus land. However, the Deputy Collector initiated the revisional proceedings under section 37 and passed an order holding that the land situated in Mahesana Taluka are required to be included in the total holding of the petitioner-Trust and directed the Mamlatdar to re-calculate the surplus land. Aggrieved by this order of the Deputy Collector, Vadodara, as well as the order of the Mamlatdar, Vadodara, Ceiling Revision Application was filed before this Tribunal.

13. The Tribunal has observed that the order of Deputy Collector issuing directions to the Mamlatdar to include Kalol lands for declaring as surplus, appears to be proper. The Tribunal has ultimately observed that the petitioner-Trust was free to move the Collector again with a reference to their applications for exemption under Section 3 of the Ceiling Act.

14. The order passed by the Mamlatdar and ALT, Vadodara are result of order dated 17.04.1997, which was taken into revision by the Deputy Collector, Vadodara. The Deputy Collector Vadodara was pleased to remand the matter back to

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the Mamlatdar and ALT for consideration of four aspects vide order dated 03.12.1999. The order passed by the Deputy Collector dated 03.12.1999 has attained finality as it has not been challenged by the petitioner. Therefore the impugned order passed by the Mamlatdar and ALT, Vadodara dated 08.05.2000 is only limited to the remand proceedings and the findings which are rendered as solely on those four aspects. The Deputy Collector, Vadodara has passed the order under the provisions of Section 37 of the Agriculture Land Ceiling Act, 1960. The petitioner herein had not challenged the order passed by the Mamlatdar and ALT, Vadodara. The petitioner without challenging the earlier orders passed by the Deputy Collector Vadodara in the impugned proceedings before this Court, at this stage, cannot raise a case of applicability of case under the provisions of Agricultural Land Ceiling Act, 1860. Apropos the contention of the petitioner qua land being non- agricultural land from 1965 i.e. date of purchase and rigors of application of provisions of ALC Act, 1960, the definition of land as mentioned in ALC Act, 1960 is required to considered as stipulated in Section 2(17). This Court in case of Shrimant Ranjitsinh P. Gaekwad v. State of Gujarat 2007 (2) G.L.H. 145 has held as follows:

"4. Section 2[6] of the Act defines "land" as perennially irrigated land, seasonally irrigated land, superior dry crop land and dry crop land. Explanation [1] defines various lands within its sweep.

5. Section 2[17] defines "land" which means land in relation to any period prior to the specified date, land which is used or capable of being used for agricultural purpose and includes sites of farm buildings appurtenant to such land. From this definition, it would clearly appear that the land which is used or capable of being used for agricultural purpose would be included in the wider definition of the word "land". Section 3[1][c] on which strong reliance is placed reads as under:-

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"Subject to the provisions of sub-sections [1A] to [1D] [both inclusive], the following lands shall be exempted from the provisions of this Act, that is to say - lands situated in any area which has been specified as being reserved for non-agricultural or industrial development under the relevant tenancy law."

6. From the fair reading and understanding of the language of clause [c], it would clearly appear that all such lands which are situated in any area which has been specified as reserved for non- agricultural or industrial development under the relevant tenancy law, are exempt from operation of the Act. Submission of the learned counsel for the petitioner was that any land which is reserved for non-agricultural or industrial development under the relevant tenancy law would be exempt from the operation of the Act, is basically on misreading of the provisions of law. The words "land situated" are qualified by further words "in any area which has been specified". If the land could be in such area which has been so specified, then, all such lands would be exempt from the operation of the Act. It would not be legal to say that the land which is situated anywhere would be exempted under Section 3[1][c] of the Act. For seeking exemption, one has to show that particular land does not fall within the definition of the land as provided under Section 2[17] of the Act. When the law says that "land which is used or capable of being used for agricultural purpose" would come within the mischief of the word "land", then one has to prove that because of the change in the land use for the purpose, the land cannot be used or in future cannot be used for agricultural purpose."

15. Thus, the petitioner Trust has to show that the land in question does not fall within the defination of "land which is used or capable of being used for agricultural purpose."

16. The Tribunal has ultimately confirmed the order with effect to the Vadodara land, as per the order passed by the Mamlatdar and the remanded proceedings dated 08.05.2000 are ordered to be restored. Reliance placed by the learned advocate for the petitioner upon the judgment of the Supreme Court as well as the judgment passed by this Court, will not rescue the case of the petitioner any further. The reliance placed on the order dated 25.08.1976 is support of the

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submission is misconceived. By the said order, the exemption under section 20 of the Urban Ceiling Act will not apply to the land at Khatamba, Vadodara, but pertains to lands at Ahmedabad urban agglomeration only. Thus, as per the judgment of the Apex Court in case of Manoharsinhji Pradumansinhji Jadeja, the ULC Act once having being repealed the Government order dated 25.08.1976 will not apply to the land situated at Khatabama, Vadodara. The Tribunal has precisely held that once the provision of the ULC Act was repealed the provision of the Gujarat Land ceiling Act would become automatically applicable, if the land are considered as agricultural land. Thus, this Court is of the considered opinion that the Tribunal has precisely held by issuing such directions, no interference is required for setting aside the impugned judgment and order dated 23.10.2002 passed by the Presiding Officer of the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No.TEN.B.A.207/2001.

17. In view of the foregoing reasons and analysis, the present writ petition fails and the same is rejected. Rule is discharged.

(A. S. SUPEHIA, J) FURTHER ORDER

After the judgement was pronounced, learned advocate Mr.Patel has submitted that the interim orders, which are passed by this Court with regard to subject land, may be continued for a period of eight weeks. Since the interim orders have been continued for all these years, on the request of

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learned advocate Mr.Patel, the interim orders passed by this Court in the present writ petition, are continued further for a period of eight weeks.

Sd/-

(A. S. SUPEHIA, J)

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