ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL)
1. Having heard Mr. Zubin Bharda, learned counsel for the appellants and perused the record, we may note that the writ petition filed by the appellants herein challenging the order dated 11.02.2015 passed by the Collector, has been dismissed with the categorical reasoning by the learned Single Judge in paragraph Nos. 3, 4, 5 and 6 as under:-
"[3] The Collector, while dismissing the appeal held as under:-
In aforesaid facts, it appears that no entry was
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made in the revenue record declaring the disputed lands bearing block no. 237/1 and 237/2 as surplus. That the ceiling holder by suppressing the said facts had sold the said lands and had got entered the names of the purchasers in the revenue record vide mutation entries no. 273 and 274. Since both the entries being entered falsely as well as entered in respect of lands already declared surplus, both the entries right from it's inception being 'null and void', has been cancelled by order dt. 13/7/2012 by this office. The same being in accordance with law is not required to be interfered. Therefore, the earlier order of this office is required to be confirmed and the Special secretary, Revenue Department ( Appeals), vide order dt. 3/9/2014 has instructed to examine as to whether the lands are Khar land or not ?, by submitting the proposal to the Revenue Department as the same falls within their powers. But as per order dt. 25/1/1993, the evidence has been collected which indicates that the disputed lands are cultivable and in future are also cultivable. Therefore, the disputed land is not found to be Khar land. Therefore, there is no need to send darkhast for Khar land. For which following order id passed.
[4] I take notice of the litigation between the original owner of the land in question, namely Chotubhai Govanbhai Patel, and the State. It appears that one Special Civil Application No.11238 of 1994 was filed by the original owner of the land in question challenging the order passed by the Authority declaring the land in question as excess pursuant to the proceedings under the Ceiling Act. I may quote the judgment and order of this Court as under:-
1. The short facts necessary for disposal of the present Writ Application are that since after coming into force of the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as "the Ceiling Act" for the sake of convenience and brevity), the present petitioner filed his form-cum- return submitting, inter alia, that he possessed 86
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Acres and 26 Gunthas land, but, as 63 Acres was khar land, the same would not fall within the mischief of 'the land' and as the same would be exempted land under Section-3 of the Ceiling Act, he was not possessed of excess land. It was also submitted that in view of Section-6(3B) of the Ceiling Act, the petitioner would be entitled to additional unit and lastly, it was submitted that the land was not perennially cultivated, rather it was absolutely dry land and, therefore, an order be passed in his favour that he did not possess excess land.
1.1 The learned Mamlatdar and ALT, vide his order dated 28th April, 1986, held that the land was not khar land, the petitioner was not entitled to any additional unit and the land was rightly considered to be cultivable land. He, accordingly, held that the petitioner was possessed of the excess land to the extent of 51 Acres and 1 Guntha. The said order was confirmed in Appeal Case No.324/1986 on 17th March, 1987 by the Deputy Collector. However, the said order came to be challenged by the present petitioner before the Gujarat Revenue Tribunal in Revision Application
No.TEN/BS/155/87, the Tribunal, vide its judgment and order dated 22nd August, 1991, partly allowed the appeal, despite holding that the petitioner was not entitled to one
extra unit and the land was cultivable, remanded the matter to the Mamlatdar-cum-ALT to decide that whether the land was khar land or not.
1.2 Since after the remand, the parties were allowed to lead the evidence, documentary and oral, the petitioner examined the District Agricultural Officer, who deposed in favour of the petitioner and in his turn, stated that the land was khar land, it was good for nothing, it could not be cultivated nor could it be made cultivable as salt was oozing out. However, the Mamlatdar, rejecting all the pleas and
defences raised by the present petitioner vide his
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order dated 25th September, 1992 in Remand Case No.13/1991, held that the petitioner was in possession of excess land
admeasuring 54 Acres and 6 Gunthas.
1.3 The aforesaid order was modified by the Deputy Collector in Ceiling Case No.3 of 1993, disposed of on 25th May, 1993, the Deputy Collector held that the petitioner was in possession of 50 acres and 20 Gunthas excess land. The petitioner then challenged the said order before the Gujarat Land Revenue Tribunal, which, by its order dated 20th August, 1993 in Revision Application No.TEN/BS/83/93, dismissed the Revision Application. The petitioner is now before this Court.
2. Shri Kharadi, learned Counsel for the petitioner, submits that the authorities were unjustified in not appreciating that the land would not fall within the mischief of the definition of 'land', as provided under Clause-17 of Section-2 of the Ceiling Act. His submission is that as the land is khar land, the same could not be taken to be the land for the purpose of ceiling and the petitioner was entitled to absolute exemption. His further contention is that the question relating to extra unit under Section-6(3B) of the Ceiling Act was not considered and the question of cultivability of land was also not taken into consideration.
3. Shri Hukum Singh, learned Counsel for the respondent-State, on the other hand, submits that the questions relating to extra unit and cultivability of the land were not kept open in the remand order, which, till date remains unchallenged, and under the circumstances, the only question, which was required to be decided by the Mamlatdar, was that whether the land was khar land, as provided under the Gujarat Khar Lands Act, 1963" (hereinafter referred to as "the Khar Lands Act" for the sake of convenience and brevity) or not. His further submission is that Section 3(1)(aa) of the
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Ceiling Act cannot be read de hors the provisions of the Khar Lands Act.
4. I have heard the parties at length and have perused the records.
5. Section 2(17) of the Ceiling Act provides the definition of land. According to the definition, the land, which can be put under cultivation, would be deemed to be the land, in any case, the land falling under Section-3 of the Ceiling Act, would be taken to be exempted land. Section 3(1)(aa) of the Ceiling Act provides that any khar land, as defined under the Khar Lands Act, would be taken to be exempted land. For application of Clause-(aa) of Section 3(1) of the Ceiling Act, one has to prove that the land is khar land, as provided under the provisions of the Khar Lands Act. A submission by somebody that the land was khar land would not be sufficient and no evidence would satisfy the requirement of law, which provides that an application on behalf of the holder of the land is required to be made before the Collector, who, under the provisions of the Khar Lands Act, shall make an inquiry and shall thereafter certify that the land is khar land. Undisputedly, no such application was ever filed by the petitioner at any time before 1st April, 1976, as required under the Ceiling Act, and if that be so, at this stage, it cannot be said that the land was khar land. It was, however, submitted by Shri Kharadi that in a given case, where the land becomes khar land subsequent to 1st April, 1976, then, any holder would not be in a position to make the application before 1st April, 1976 and under the said circumstances, the land must be deemed to be exempted land.
6. The argument is misconceived, firstly because if the land is not khar land on 1st April, 1976, the provisions of Section 3 of the Ceiling Act would not provide exemption to such and because the land would not be an exempted land under the provisions of the Act, and secondly, the land can be
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exempted if it is held to be khar land on an application made to the authority prior to 1st April, 1976. In either of the situations, the petitioner is required to satisfy the Court that prior to 1st April, 1976, the land was khar land, he had made an application to the Collector under the provisions of the Khar Lands Act and has obtained an order in his favour. On this ground, I am unable to hold that the authorities were unjustified in holding that the land was not khar land.
7. So far as the other questions raised by Shri Kharadi are concerned, the same cannot be allowed to be agitated in view of the earlier order of remand, which had sealed the fate of the petitioner, and the petitioner, feeling satisfied by the said order, did not propose to challenge the correctness, validity and propriety of the said order.
8. After taking into consideration the totality of the circumstances and the provisions of law, I hold that there is no scope for any interference in this matter.
9. The petition deserves to and is accordingly dismissed. Rule is discharged. Interim relief, if any, is vacated. No costs.
[5] Thus, in view of the judgment and order passed by this Court, the issue with regard to the excess land attained finality. The applicants herein claim to have purchased the land in question in the year 2004. They claim to be the bonafide purchasers of the property for value without notice. I am afraid the applicants have no case worth the same. The subject land was declared excess way back in the year 1994 in the ceiling proceedings. Those proceedings have attained finality. The land vested with the State Government.
[6] In such circumstances, the entries mutated pursuant to the sale deed executed in favour of the present applicants, are hardly of any consequence. I am of view
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that the two entries have been rightly cancelled. It is the case of the applicants that they had been duped and cheated by the original owner namely Chotubhai Govanbhai Patel. It is always open for the applicants to initiate appropriate proceedings against him in accordance with law including the civil suit for recovery of the sale consideration."
2. It seems that by the order impugned dated 11.02.2015, the Collector has dismissed the appeal filed by the original petitioners challenging the order of the Deputy Collector, cancelling the entry Nos. 273 and 274 mutated in the record of rights with respect to the land bearing Block/Survey Nos. 237/1 and 237/2 situated at village Danti, Taluka Jalalpur, District Navsari. As noted by the learned Single Judge in para '3' of the judgment impugned, the Collector has categorically held in the order impugned dated 11.02.2015 that the disputed lands bearing Block Nos. 237/1 and 237/2 were declared as surplus and the ceiling-holder while suppressing the material fact had sold the lands to the original petitioners. While making mutation entry Nos. 273 and 274 entering the names of the purchaser in the revenue record, the fact of declaration of the land in question as surplus was not disclosed nor noted. There is a categorical finding in the order impugned dated 11.02.2015 by the Collector that both the entries right from their inception are based upon falsehood and are in respect of lands already declared surplus and as such, had been rightly cancelled by the previous order dated 13.07.2012 by the office of the Collector.
3. These findings of fact returned in the order impugned passed by the Collector, which were the subject matter of
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challenge before the Writ Court, cannot be examined within the scope of Article 226 of the Constitution of India. Moreover, it is noted by the learned Single Judge that the challenge to the order passed by the competent authority declaring the land in question as excess pursuant to the proceedings under the Gujarat Agricultural Land Ceiling Act, by the original owners, has been brought to an end in Special Civil Application No.11238 of 1994, wherein the writ petition was dismissed refusing to interfere in the order passed by the Mamlatdar & ALT dated 28.04.1986, holding that the land in question was not 'Khar' land and the original owners were not entitled to any additional unit and the land was rightly considered to be cultivable.
4. It further appears from the record that the impugned order dated 11.02.2015 has been passed by the Collector upon remand by the SSRD in the revision filed against the order dated 13.07.2012 of cancellation of mutation entry Nos. 273 and 274 in favour of the original petitioners, with the instructions to examine as to whether the lands in question are 'Khar' land or not.
5. The order impugned dated 11.02.2015 of the Collector further records that the evidence collected during the course of the proceedings under the Gujarat Agricultural Land Ceiling Act as per the order dated 25.01.1993 categorically indicate that the lands in question are cultivable and will in future also cultivable and they are not found to be 'Khar' land.
6. At the cost of repetition, we may say that the question as
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to whether the land in question was 'Khar land' or 'cultivable land' cannot be made subject matter in the proceedings drawn by the original petitioners - appellants herein, seeking for entry of their names based upon the sale deed dated 02.06.2004, when the said issue was specifically raised in the writ petition filed by the original owners viz. the Special Civil Application No.11238 of 1994 and was adjudicated in the order passed by the Mamlatdar dated 28.04.1986 while declaring the lands in question as surplus.
7. In the totality of the facts and circumstances of the case, as rightly held by the learned Single Judge the issue with regard to the excess land of the original owners had attained finality and the petitioners, who claimed to be the purchasers of the land in question, which was declared surplus in the ceiling proceedings, cannot be permitted to raise the same issue after the land in question vests with the Government.
8. The entries pursuant to the sale deed dated 02.06.2004 in favour of the original petitioners pertaining to the land which was declared surplus and vested with the State Government, are liable to be quashed. For the claim of the original petitioners that they are bona fide purchasers and that they were duped and cheated by the original owners, as rightly held by the learned Single Judge, it would always be open for the original petitioners - appellants herein to initiate appropriate proceedings by approaching the Civil Court for the reliefs as may be available to them.
9. In view of the above, no interference is called for in the
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order of the learned Single Judge. The present appeal stands dismissed with the liberty as granted by the learned Single Judge.
(SUNITA AGARWAL, CJ )
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
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