Judgment:
D.C. Srivastava, J.
1. The petitioner, through this petition, has prayedfor quashing the Judgment and order Annexures : A, C & Erespectively passed by the Mamlatdar, Deputy Collectorand the Land Revenue Tribunal in Ceiling Case arisingunder the Gujarat Agricultural Land Ceiling Act.
2. The case has a chequered history which is clearlyindicated in the order of the Gujarat Revenue Tribunal,Annexure : E. Petitioner submitted revised form No.2 on28.6.1976 under the Agricultural Land Ceiling Act showingthat he had in his possession 144 Acres - 6 gunthas ofland. After inquiry the Mamlatdar declared 94 Acres - 06gunthas as surplus land with the petitioner on 7.10.1981in Ceiling case No.29 of 1976. The petitioner preferredAppeal before the Assistant Collector. The Appeal wasallowed and the matter was remanded to the Mamlatdar inCeiling Appeal No.9 of 1981. The Mamlatdar reheard thematter and through his order dated 31.12.1982 againdeclared 94 Acres - 06 gunthas as surplus land with thepetitioner. The petitioner again preferred CeilingAppeal No.2 of 1983 and the Deputy Collector dismissedthe said Appeal on 20.6.1983. A revision was preferredbefore the Gujarat Revenue Tribunal which was allowed on6.6.1983 and the matter was remanded to the 1stAuthority, namely, the Mamlatdar for rehearing the matterafter issuing Notices to all interested parties. Incompliance of this order the Mamlatdar through orderdated 15.4.1985 in Ceiling Case No.25 of 1983 held thatno land of the petitioner could be held as surplus land.Feeling aggrieved with this order revision was filed bythe Deputy Collector which was allowed and the order ofthe Mamlatdar was set aside. The matter was againremanded to the Mamlatdar. The Mamlatdar declared 148Acres - 6 Gunthas land as surplus with the petitioner inCeiling case No.1 of 1987 on 8.8.1988. Again the matterwas taken in revision and it was remanded to theMamlatdar vide order dated 3.12.1990. The Mamlatdaragain conducted hearing in the matter through CeilingCase No.1 of 1992 and through order dated 27.2.1993declared 98 Acres - 6 gunthas land as surplus with thepetitioner. The petitioner filed Appeal before thedeputy Collector, who rejected the same on 30.11.1993.Thereafter Revision was again filed before the GujaratRevenue Tribunal which was dismissed on 4.4.1996. Thus,these three last orders are under challenge in this Writpetition.
3. Learned Counsel for the petitioner and thelearned A.G.P. were heard.
4. The first contention of the learned Counsel forthe petitioner was that the provisions of Section 6(3B)of the Gujarat Agricultural Land Ceiling Act, 1960 (forshort 'the Act') were not properly considered andappreciated and the additional benefit which ispermissible under this section was not given to the landholder and if proper and admissible benefit would havebeen given there would have been no surplus land with thepetitioner. Another contention has been that the benefitof Section 6(3C) of the Act was also not given and thelast contention has been that since the ration cardproduced was not properly considered and appreciated itis a matter where after quashing the aforesaid judgmentand order the matter may be remanded again to the 1stAuthority, namely, the Mamlatdar for further inquiry.
5. I propose to discuss the third suggestion andargument of the learned Counsel for the petitioner first.As indicated in the foregoing portion of the Judgment thematter has been remanded several times by one or theother authority and now further remand of the matter ishardly necessitated. If the matter can be decided on thematerial on record and in the light of the provisions ofSection 6(3B) and Section 6(3C) of the Act, there wouldnot arise any occasion for remanding the matter again tothe Mamlatdar. Thus, the last contention of the learnedCounsel for the petitioner cannot be accepted.
6. The second contention of the learned Counsel forthe petitioner regarding benefit of Section 6(3C) alsocannot be considered. Section 6(3C) of the Act providesthat where a family or a joint family irrespective ofnumber of members includes a major son then such majorson shall be deemed to be a seperate person for thepurpose of Sub. Section (1). There is clear finding ofthe authorities below that on the relevant date there wasno major son of the petitioner, consequently no benefitcould be given to the petitioner on account of his havingmajor son on the specified date, namely 1.4.1976. Thismatter was properly dealt with by the Authorities and thecontention to the contrary cannot be accepted.
7. The only point for consideration which is nowleft is whether the Authorities below have notappreciated the provisions of Section 6(3B) of the Actand have failed to apply the same correctly.
8. Section 6(3B) of the Act provides that where afamily or a joint family consist of more than fivemembers comprising a person and other members belongingto all or any of the following categories, namely :
(i) Minor son;
(ii) widow of a pre-deceased son;
(iii) minor son or unmarried daughter of apre-deceased son, where his or her motheris dead, such family shall be entitled to hold land in excessof the ceiling area to the extent of one fifth of theceiling area for each member in excess of five, sohowever that the total holding of the family does notexceed twice the ceiling area; and in such a case, inrelation to the holding of such family, such area shallbe deemed to be the ceiling area;
A bare perusal of this sub. section makes it clearthat in order to avail of the benefit of enlargement ofthe ceiling area two conditions must be satisfied, viz.(i) that the family should consist of more than fivemembers and (ii) and it should have amongst it thecategories of members mentioned in the three sub-clauses.If a family does consist of more than five members, butnot amongst it any of the members mentioned in the threesub-clauses it will not be entitled to the benefit ofenlargement of the ceiling area. The benefit ofenlargement of the ceiling area will be available onlywhen the family consists of more than five members andamongst them are members belonging to the categoriesmentioned therein.
9. There are thus two requirements, firstly numberof family members should exceed five and that the personsso exceeding five in number should fall in one of thethree sub-clauses, namely they are either minor son orwidow of a pre-deceased son or minor son or unmarrieddaughter of a pre-deceased son where his or her mother isdead. These two conditions cannot be truncated. Similarinterpretation was taken regarding Section 6(3B) by thisCourt in the case of Nathekhan Sojalkhan Bihari v/s.Mamlatdar, Vadgam & ors., reported in 1984 (2) G.L.R.1473.
10. The Honourable Supreme Court has also interpretedSection 6(3B) of the Act in the case of State ofGujarat v/s. Jat Laxmanji Talasji, reported in A.I.R.1988 SC 825. It has been held by the Apex Court that thelandholder, his wife and his offspring consisting ofthree minor sons and three minor daughters wouldcertainly constitute a family even if the mother of thelandholder is excluded from consideration. Thus in anyview the family of the landholder consisted of 8 membersincluding himself, his wife, three minor sons and threeminor daughters. It could not be said that the familyconsisted of not more than 5 members. The plea that thelandholder, his wife and his three minor sons are theonly five persons of the family for the purpose ofSection 6(3B) would not be sustainable as S.6(3B) couldnot be read in said artificial and truncated manner.According to the Apex Court on a plain reading, Section6(3B) is attracted where a family consists of more thanfive members 'comprising a person' and other membersbelonging to all or any one of the following categoriesmentioned in this sub-section. The family also includespersons of one of the specified categories, viz. theminor sons. For claiming benefit of Section 6(3B) thetest which must be satisfied is a twofold test. First,whether the claimant's family consists of more than fivepersons and the second is that such family must alsocomprise of one of individual and other members besideshimself who must belong to all or any of the threespecified categories.
11. The word 'family' has not been defined under theAct. The joint family appearing in Section 6(3B) hasbeen defined under Section 2(16) of the Act which meansan undivided Hindu family and in the case of other persongroup or unit the members of which by custom or usage arejoint in estate or residence. Thus, from this definitionof the word 'joint family' it means in cases of Hindusundivided Hindu family and for other persons it means agroup or unit, the members of which by custom or usageare joint in estate or residence. The petitioner is aMahomedan and as such concept of joint Hindu family isnot applicable to this case. If he is considered to beother person within the meaning of Section 2(16) of theAct it had to be established by him that under the customor usage the other members were joint in estate orresidence on the relevant date, namely, 1.4.1976. Fromthe three impugned judgments it appears that there was nopleading to this effect. This ground was also not takenspecifically in the writ petition. The assertions in thewrit petition are that two brothers and four sisters ofthe petitioner under the Mahomedan Law are entitled toequal share and as such they were entitled to holdindependently and if this is so then no land could beconsidered to be surplus land. It is significant tomention that this plea was taken at several places in thewrit petition and there was argument to this effect aswell. However, this plea was repelled by the Authoritiesbelow. The Tribunal has observed that the land has beenentered vide entry No.357 dated 2.6.1970 in the record ofrights in the name of petitioner as having heriditorycharacter. However, Senior Revenue Clerk on 4.7.1971made entry No.11 for hariditary and certified forentering the names of six heirs. Subsequently, throughentry No.409 dated 1.3.1972 all the remaining heirs hadwithdrawn their rights from the land in question andhence the same was registered in the name of thepetitioner. It is also mentioned that only the name ofthe petitioner was entered. Annexure : D to the writpetition is Memo of Revision preferred before theTribunbal on which the impugned judgment was rendered bythe Tribunal. It is mentioned in this Memo that the landin question was given to the applicant by his maternaluncle Khalifa Janmohmed Valimohmad by will. The zeroxcopy of the will was also filed. The name of petitionerwas first entered in the revenue Record and thereafterthe petitioner got this land entered in the joint namesof his two brothers Khalifa Lalmohmed Shefmohmed andKhalifa Ramzan Shermohmed and four sisters Khatabai,Fatamabai, Jenubai and Aminabai and thus got the entrymade in joint names of seven persons.
12. From this admission it is clear that thepetitioner got the land under will from his maternaluncle. Thus other persons were excluded. It is notshown from the record that the two brothers and foursisters were also beneficiaries under the Will. Thus, onthe basis of the will the name of the petitioner alonecould be entered in the record of right and subsequentaction of getting the name of his two brothers and foursisters was unjustified and uncalled for. More over thisaction of getting the entry in joint names of sevenpersons was taken on 4.7.1971 i.e. after the prescribeddate, namely, 24.1.1971. As such the entry dated4.7.1971 has no relevance and it will be deemed to be anaction to frustrate the provisions of the Act. If thepetitioner got the land through will from his maternaluncle he alone will be considered as land holder or ownerwithin the meaning of Section 2(20) of the Act. Hecannot be said to be the tenant of any person thereof.Consequently under section 6(1) of the Act the petitionercould not hold land in excess of the ceiling area. Sincethe ceiling area applicable to the petitioner is 54Acres, he can not hold land more than the ceiling area.
13. It is now to be seen whether the two brothers andfour sisters of the petitioner would be entitled to holdany land. As observed earlier they did not get any rightunder the Will. The action of the petitioner in gettingtheir names entered in the revenue record after theprescribed date was nothing but an action to frustratethe provisions of the Act. They were therefore notentitled to hold any land, namely, disputed land in theirnames. The Authorities below, therefore, did not commitany illegality in excluding the claim of the two brothersand four sisters of the petitioner. It is significant tomention at this stage that this claim was made only bythe petitioner. The two brothers and four sisters neverappeared either before the Mamlatdar or before the DeputyCollector or before the Tribunal in series of litigationin respect of this case under the Ceiling Act to claimtheir right title or interest in any portion of the land.Even the petitioner did not make them respondent beforethe Mamlatdar, the Deputy Collector or before theTribunal. As such belated stand of the petitioner isnothing but to frustrate the provisions of the Act.
14. The next contention of the learned Counsel forthe petitioner has been that the Authorities below didnot consider properly the entries in the ration cardshowing the names of the family members of thepetitioner. As such the matter may be remanded to theMamlatdar for fresh consideration. I have alreadyindicated above that there is no necessity to remand thematter again to the Mamlatdar. Ration card is notconclusive evidence of the number of family members norit is clinching evidence regarding ages of the personswhose names are found in the ration card. Normally agesare mentioned in the form for ration card on the basis ofdeclaration of the owner of the house. No reliableevidence regarding date of birth of the son and minordaughter of the petitioner was brought on record. Theration card was not filed at the earliest opportunity.It was obtained in the year 1981. It was not filedearlier before the petitioner got himself examined andcross examined. It was filed at the time of hisre-examination. There are various contradictions in thestatement of the petitioner and the entries in the rationcard. These contradictions have been noticed in theJudgment of the Tribunal. The tribunal has mentionedthat the petitioner in his statement, recorded on5.9.1994 before the Mamlatdar, stated the names of hisfive sons and one daughter and while stating their nameshe stated that all the children were below 12 years.From this statement it follows that the petitioner washaving five sons and one daughter. He further statedthat his wife was also member of family and in this wayhis family members were eight in number. As against thisin the ration card produced during re-examination of thepetitioner, it was mentioned that there were 10 familymembers in which there are three sons of the ages of 7, 8and 3 years and one daughter who is shown to be aged oneyear. It was not clarified as to how the number offamily members exceeded from 8 to 10. Before theMamlatdar the petitioner has stated that he had five sonsand one daughter whereas in the ration card prepared inthe year 1981 entry was found in respect of three minorsons and one minor daughter of the petitioner. Thus theclaim of the petitioner that he had five sons appears tobe contradictory and unreliable. In the absence ofexplanation how the number of family members increased inthe ration card from 8 to 10 no weight can be attached tothe ration card. If there were only 8 members in thefamily of the petitioner and in the ration card it isshown that the petitioner had three minor sons and oneminor daughter besides himself and his wife, it can besaid that there were in all six members in the family ofthe petitioner and not eight. Out of six persons onedaughter aged one year could not be born on 1.4.1976.Likewise the minor son aged 3 years shown in the rationcard of 1981 could not have been born on 1.4.1976. Ifthese two minors are excluded from consideration thenthere could be only four members in the family of thepetitioner, namely, himself, his wife and two minor sonsaged 7 & 10 years who could have been alive on thespecified date i.e. on 1.4.1976. Thus, if familymembers of the petitioner did not exceed 5, then nofurther benefit of Section 6(3B) of the Act could begiven to the petitioner. Consequently it is difficult toaccept the contention that on facts as well as in law theauthorities below did not properly appreciate theprovisions of Section 6(3B) of the Act.
15. It is also incorrect to say that the AppellateAuthority had not considered the ration card. In theJudgment of the Appellate Authority (Annexure : C) it isclearly mentioned in Para : 3 that the ration card wason the record and it was considered by him.
16. The Authrities were justified in ignoring thesale deed executed by the petitioner in favour of otherperson after 24.1.1971. The Sale Deeds were executed inthe year 1972, 1973 and the petitioner did not obtaindeclaration under Section 8(1) of the Act. Consequentlylands which were subject matter of the Sale Deeds wererightly considered to be the land of the petitioner forthe purposes of the Act.
17. In the result it is found that there has been noerror of calculation in determining the surplus land norin doing so any provision of the Act was violated. Ialso do not find force in the contention that the rationcard was not considered by the Authorities. In apetition under Article 226 of the Constitution of India,the findings of fact of the Authorities below cannot bereversed simply because different view can be taken fromthe evidence on record. More over as pointed out earlierin this judgment that the ration card is no clinchingevidence or reliable evidence on the strength of familymembers or their ages or their date of birth it could notbe held on the basis of the ration card that thepetitioner was entitled the benefit of Section 6(3B) ofthe Act.
18. The result of the foregoing discussion is that nosubstance is found in this writ petition, which is liableto be dismissed and is hereby dismissed with no order asto costs.