[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11645 of 2017 JADABEN SHANKARBHAI CHAUHAN & 5 Petitioner(s) Versus SUSHILABEN W/O PARSHOTTAMBHAU CHUNIBHAI AMIN & 4 Respondent(s) Appearance: MR YV BRAHMBHATT, ADVOCATE for the Petitioner(s) No. 1-6 MR AB MUNSHI, CAVEATOR for the Respondent(s) No. 1-3 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 24/07/2017 ORAL ORDER
1. By this application under [SECTION] of the [ACT], the applicants call in question the legality and validity of the order dated 8th March, 2017 passed by the Gujarat Revenue Tribunal, Ahmedabad, by which, the Tribunal rejected the revision application filed by the applicants herein, thereby affirming the order passed by the Deputy Collector dated 2nd December, 1998 in the [CASE NUMBER] respectively.
2. The facts giving rise to this application may be summarized as under;
2.1 The dispute between the parties pertains to the land bearing Survey No.476/3, admeasuring 35 gunthas, situated in the sim of village Virsad, Taluka: Borsad, District: Kheda. It is [ACT] Page 1 of 28 Created On Mon Aug 21 02:36:48 IST 2017 the case of the applicants that their predecessor-in-title, namely [ENTITY] was cultivating the said parcel of land as a tenant. The materials on record indicate that [ENTITY] made a statement dated 13th July, 1961 before the [ENTITY] that he had stopped cultivating the land in question as a tenant past four year and had handed over the possession to the landlord. He also further stated that the land was being cultivated by [ENTITY], i.e., the land owner and he had no right, title or interest in the said land. He also made a statement that he was not interested to purchase the land. It appears that the authority concerned, thereafter, passed an appropriate order deleting the name of late [ENTITY] as a tenant from the record of rights.
2.2 Despite the above, late [ENTITY] filed an application addressed to the [ENTITY], Borsad that he was ready and willing to purchase the land under [SECTION] of the [ACT]. It appears from the materials on record that having regard to the order passed in the year 1961, surrendering the land in question, the proceedings under [SECTION] came to be terminated. It deserves to be noted that the application filed by [ENTITY] under [SECTION] was almost after a period of 17 years from the date of the surrender. To be precise, 19th July, 1978.
2.3 Curiously, after terminating the proceedings under [SECTION] of the Act, proceedings under [SECTION] of the [ACT] came to be initiated. The proceedings were registered before the [ENTITY] & ALT, Borsad as the Tenancy [ACT] Page 2 of 28 Created On Mon Aug 21 02:36:48 IST 2017 Case No.8 of 1981. The [ENTITY] & ALT, by his order dated 24th August, 1981, directed that the possession be restored to the original tenant as the surrender of the land was not in accordance with law. Being dissatisfied with such order passed by the [ENTITY] & ALT, the respondents herein filed a [CASE NUMBER] before the Deputy Collector under [SECTION] of the [ACT]. The Deputy Collector, by his order dated 18th January, 1982, dismissed the appeal and affirmed the order passed by the [ENTITY]. Being dissatisfied, the respondents filed a revision application before the Gujarat Revenue Tribunal and the revision application also came to be rejected by the Tribunal vide order dated 19 th September, 1983. All the three orders, referred to above, came to be challenged by the respondents herein before this Court by filing the [CASE NUMBER]. This application was taken up for hearing by a learned Single Judge, and by judgment and order dated 25th April, 1997, partly allowed the same. The order reads thus;
"This special civil application arises out of the proceedings under [SECTION] of the [ACT], initiated by the [ENTITY] & Agricultural Lands Tribunal ("A.L.T."), Borsad, on the basis of the application made by the respondents on 19th September, 1978. The dispute pertains to the land bearing Survey No.476/3, admeasuring 35 gunthas situated in the sim of village Virsad, Taluka Borsad, District: Kheda. The [ENTITY] & A.L.T., by his order dated 24th August, 1981, accepted the application and directed the petitioners to hand over possession of the said disputed land to the respondents. The matter was taken up by the petitioners in appeal before the Deputy Collector, Petlad, who, vide his order dated 18th January,1982 dismissed the same. The matter was then carried by the petitioners in revision before the Gujarat Revenue Tribunal, but the Tribunal also [ACT] Page 3 of 28 Created On Mon Aug 21 02:36:48 IST 2017 dismissed the revision application under order dated 19th September, 1983. Hence the present petition.
2. The only contention raised by the learned counsel for the petitioners is that the application under [SECTION] of the Act by the respondents was not maintainable, as it is not the case where the tenant has been dispossessed from the land by the landlord otherwise than in accordance with the provisions of the Act. This is a case where the tenant voluntarily surrendered possession of the land and as such the case does not fall under the provisions of [SECTION] of the Act. In support of this contention learned counsel for the petitioner placed reliance on the decision of the apex court in the case of [ENTITY] vs. Ramchandra Balwantrao Dubal (since deceased), reported in 36(1) GLR 344. On the other hand counsel for the respondent contended that this point was not raised by the petitioners before the Gujarat Revenue Tribunal and as such this point is not open to him. It has next been contended that this aspect has been considered by the [ENTITY] & A.L.T. and as such it is finding of fact, which may not be interfered with by this Court sitting under [SECTION] of the [ACT].
3. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. The statements of [ENTITY] recorded on 13th July, 1961 in the proceedings initiated under [SECTION]G of the Act has been filed by the petitioner on the record of the special civil application. Further, statement of [ENTITY] was referred by the [ENTITY] in his order, but the statements of the aforesaid witness appears to have been not correctly read by the said authority. I consider it to be a fit case where the matter has to be remanded back to the authorities for deciding the matter afresh after considering the statements of [ENTITY]. I do not consider it to be advisable to give any finding on the merits, but the matter is required to be considered with reference to the question whether it is a case of dispossession of the tenant otherwise than in accordance with the provisions of the Act or it is a case of voluntary surrender of possession of the land to the landlord. It is a matter of [ACT] Page 4 of 28 Created On Mon Aug 21 02:36:48 IST 2017 appreciation of evidence and it has to be done by the [ENTITY] & A.L.T. In view of the aforesaid decision of the apex court, reliance on which has been placed by the counsel for the petitioners , in case it is a voluntary surrender of possession by the tenant to the landlord, protection under [SECTION] of the Act may not be available to the tenant. This larger issue was not considered by the authorities below. Both the counsel for the parties are agreeable to the matter being remanded back to the [ENTITY] & A.L.T.
4. In the result this special civil application succeeds in part. The order of all the three authorities below, namely, the [ENTITY] & A.L.T., the Deputy Collector and the Gujarat Revenue Tribunal are quashed and set aside. The matter is remanded back to the [ENTITY] & A.L.T. with direction to restore the case to its original number and to decide the same afresh in accordance with law, keeping in view the ratio of the decision rendered by the apex court in the case of [ENTITY] (supra), on the basis of the material produced by the parties on record. It shall not be open to either of the parties to amend the pleadings or to produce any other additional evidence. Consideration of the matter by the [ENTITY] & A.L.T. shall be on the basis of the pleadings of the parties as well as the evidence produced by the parties on record. Since it is an old matter the [ENTITY] & A.L.T. shall decide the same within a period of six months from the date of receipt of certified copy of this judgment. Rule is made absolute in the aforesaid terms. No order as to costs. "
2.4 Pursuant to the order passed by this Court, referred to above, the matter was again taken up by the [ENTITY] and the same was registered as the [CASE NUMBER]. The [ENTITY], by his order dated 31st March, 1994, held that the inquiry under [SECTION] was liable to be closed as the tenant had stopped cultivating the land, and in this regard, his statement dated 13th July, 1961 was recorded. The [ENTITY], in his order, observed as under;
[ACT] Page 5 of 28 Created On Mon Aug 21 02:36:48 IST 2017 "That overall considering the facts of the case as well as the deposition of the Tenant dated 13/7/61 and the judgement of the Supreme Court and 16 GLR page no. 344 and Hon'ble Gujarat High Court in [CASE NUMBER] page no. 1197 page no. 1197, it is not proved that landlord has taken away possession from applicant. But it is proved that tenant willingly handed over possession. Therefore, the proceedings under [SECTION] of the [ACT] are required to be closed. Therefore in this matter I pass following order.
ORDER In view of the aforesaid discussion, considering the provision of [SECTION] of the [ACT] it is not proved that the applicant was in possession of the disputed land as tenant as on 15/6/55 and the proceedings under [SECTION] of the [ACT] are hereby closed.
The copy of the order may be forwarded to Talati Cum Mantri for necessary entry in his record."
2.5 The applicants being dissatisfied with the order passed by the [ENTITY] & ALT, filed an appeal before the Deputy Collector, which came to be registered as the [CASE NUMBER]. The Deputy Collector, by his order dated 2 nd December, 1998, dismissed the appeal and affirmed the order passed by the [ENTITY] & ALT. While dismissing the appeal, the Deputy Collector, held as under;
"In [CASE NUMBER], interim order of the [ENTITY] & ALT has been challenged. In this matter, in spite of specific direction of the Hon'ble High Court, the appellant has tried to produce new evidence and had also filed application to adduce new evidence which has been rejected. Against which [CASE NUMBER] has been preferred.
[ACT] Page 6 of 28 Created On Mon Aug 21 02:36:48 IST 2017 In spite of the specific direction of the Hon'ble high court if the applicant produce new evidence or if defendant permits appellant to produce new evidence then it would be in violation of the direction and would amount to contempt of court of directions of Hon'ble High Court and considering the said fact the [ENTITY] & Alt has rejected the application of the appellant dated 19/12/97 vide order dated 22/12/97. Which is legal [ENTITY] & ALT has passed the order of rejection based on the order of the Hon'ble High Court. The order of the [ENTITY] & ALT of not permitting to adduce the new evidence is just and proper to avoid the violation of the directions of the higher authority.
In this matter, the order dated 22/12/97 passed by the [ENTITY] & ALT seeking permission to adduce new evidence and the order dated 31/3/98 of closing the inquiry under [SECTION] of the [ACT] passed by the lower court is just and proper and no valid reason to interfere. Therefore both the appeals of the appellant is required to be rejected. Therefore, following order is passed.
ORDER The appeals of the appellant being [CASE NUMBER] and [CASE NUMBER] is hereby rejected. The order dated 22-12-97 passed in [CASE NUMBER] and the order dated 31/3/98 passed in [CASE NUMBER] is hereby confirmed.
The parties may be informed about the order by post."
2.6. Thereafter, the applicants went before the Gujarat Revenue Tribunal by filing a [CASE NUMBER]. The Gujarat Revenue Tribunal, by his order dated 8th March, 2017, rejected the revision application holding as under;
[ACT] Page 7 of 28 Created On Mon Aug 21 02:36:48 IST 2017 "Perused the arguments made by the parties as well as orders of lowers courts. Name of father of the applicant, namely [ENTITY] was running in the record as Tenant but name of tenant was deleted from Tenancy rights. The said fact has been stated by tenant himself in his deposition on 13/7/61. Thereafter, application has been tendered on 19/7/78. Before that no application has been made to recover possession. The application of the tenant under [SECTION]G of the [ACT] has been cancelled and thereafter initially inquiry under [SECTION]G has been postponed. The prayer made by the applicant are refused in the subsequent proceedings. In the application made by the applicant, the applicant himself has unable to prove to be tenant of disputed land. Firstly, as per version of the applicant himself his name was there in the record as tenant but as per deposition of tenant it is found that his name has been deleted. Therefore the inquiry under [SECTION]G has been ordered to be closed and that has attained finality upto Hon'ble High Court. In this matter, pursuant to the order passed in Sp.C.A. before the Hon'ble High Court, the matter was remanded to inquired under [SECTION] in which no new evidence were to be taken but as per the evidence on record decision was to be taken under [SECTION] of the [ACT]. Accordingly , the Tenant case no. 408/84 under [SECTION] of the [ACT] is ordered to be closed. That upon perusal of the said order the arguments of the parties has been properly verified. In that it is rightly hold that merely because of inclusion of the name of tenant in record and payment of revenue, the application under [SECTION] does not stand proved. That order appears to be just and proper and therefore the appeal challenging the said order being [CASE NUMBER] and the appeal challenging the order passed below application to adduce new evidence being [CASE NUMBER] is also just and proper. Considering the arguments made during hearing present I believe [ACT] Page 8 of 28 Created On Mon Aug 21 02:36:48 IST 2017 that the present revision application deserves to be rejected. Therefore, I pass following order.
ORDER.
Present revision application no. TEN/BA/44/99 is hereby rejected.
The order dated 02/12/98 passed by the Deputy Collector (L.R.), Appeal, Anand in [CASE NUMBER] and [CASE NUMBER] is confirmed.
The order dated 31/03/98 passed by the [ENTITY] & ALT, Borsad in Remand case no. 408/84 is confirmed."
2.7 Being dissatisfied with the concurrent findings recorded by the three revenue authorities, the applicants have come up with this petition invoking the supervisory jurisdiction of this Court under [SECTION] of the [ACT].
3. Mr. [ENTITY], the learned counsel appearing for the applicants submitted that this Court remitted the matter for the purpose of taking a fresh decision in accordance with law keeping in view the ratio of the decision rendered by the Supreme Court in the case of [ENTITY] vs. Ramchandra Balwantrao Dubal, 1995 (1) GLR 344. Mr. [ENTITY] would submit that the decision of the Supreme Court in the case of [ENTITY] (supra) is no longer a good law as the said judgment has been declared as per incurium in the decision in the case of [ENTITY] vs. Babu, AIR 2004 SC 754. He invited my attention to the observations of the Supreme Court in the case of [ENTITY] (supra) as contained in para-3. The same reads as under;
[ACT] Page 9 of 28 Created On Mon Aug 21 02:36:48 IST 2017 "3.Two questions arise in this appeal, one if the High Court was right, in law, in negativing claim of the appellant under [SECTION] and other if the Tribunal in setting aside the finding on collusion in revision exceeded its jurisdiction. Out of the two it is proposed to take up legal issue on applicability of [SECTION] as if the appellant cannot successfully assail this finding then the finding on collusion becomes academic only. [SECTION] of the Act is extracted below:
"Where a tenant who was in possession on the appointed day and who on account of his being dispossessed before the 1st day of April 1957 otherwise than in the manner and by an order of the Tahsildar as provided in [SECTION], is not in possession of the land on the said date and the land is in the possession of the landlord or his successor-in- interest on the 3 1st day of July 1969 and the land is not put to a nonagricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said [SECTION], either suo motu or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and [SECTION] (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him:
Provided that, the tenant shall be entitled to restoration of the land under this sub-section only if he undertakes to cultivate the land personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area."
The section entitles a tenant to restoration of possession provided he was in possession on the appointed date, i.e., June 15, 1955 and was dispossessed before April 1, 1957 and his landlord was in possession on July 31, 1969.
[ACT] Page 10 of 28 Created On Mon Aug 21 02:36:48 IST 2017 The section is, thus, in two parts one creating right and other entitling restoration of possession. Proceedings for restoration could take place either at the instance of the tenant or suo motu by the Tahsildar. But the order could be passed only if the primary requirements of tenant being in possession on the appointed date and his dispossession before April 1, 1957 were satisfied. The language of the latter part of the section directing the Tahsildar to take possession of the land from the landlord and restore it to the tenant who on restoration by operation of law becomes purchaser from the date of restoration are clear legislative indications to construe the section liberally in favour of the tenant. What happens if a tenant who satisfied the requirements as provided in the section is found to be in possession on July 31, 1969. Could he be evicted in any proceeding even though he satisfied the requirement of being in possession on appointed date and was evicted before April 1, 1957. Would such construction of the section be in consonance with the spirit of the Act. On the language the sub-section does not grant any protection to a tenant who was in possession on July 31, 1969. But reading the section in such a narrow manner would be defeating the legislative objective of enacting a beneficent legislation endeavouring to make the tillers of soil as purchaser and owner. This is clear from amendments made in [SECTION] from time to time between 1957 to 1969. When [SECTION] was renumbered and sub-section (1) was added in 1957, April 1, 1957 was declared as tillers' date and it was provided that every tenant who was one of those mentioned in the sub-section and was cultivating the land personally was entitled to become purchaser of such land from his landlord free of all 371 encumbrances subsisting on that date. In 1958 similar rights were granted by sub-section (1-A) added to [SECTION], to those tenants who had been evicted prior to the tillers' date and were not in possession but had made an application for possession of the land under [SECTION]. In 1969 yet another right was granted by [SECTION] which has been extracted above. There can, thus, be no doubt that the legislature intended not only to grant rights to those tenants who were in possession but also to restore the land from which the tenant had been evicted prior to 1957 on satisfying the conditions mentioned in [SECTION] and make such a person on restoration of [ACT] Page 11 of 28 Created On Mon Aug 21 02:36:48 IST 2017 possession, purchaser of the land. What happens if a tenant who is otherwise entitled to restoration of possession due to operation of the first part of the section is found to be in possession after July 31, 1969 either with permission of the landlord or in any other manner? Is such a tenant liable to eviction? The answer should be in the negative as it would result in conferring higher rights on a person who is not in possession than a person who is in possession. In our opinion, [SECTION] should be construed in a manner which must effectuate the legislative objective of making every tenant purchaser of the land if he satisfies the conditions laid down in [SECTION] of the Act whether he was in possession or not. "
4. Mr. [ENTITY] submitted that [ENTITY] (supra) was heard by the three judges. Justice [ENTITY] (as his lordship then was) gave a descanting judgment. Mr. [ENTITY], thereafter, invited my attention to the decision in the case of [ENTITY] (supra). He led emphasis on the following observations made by the Supreme Court;
"6. The said Act, therefore, contemplates termination of tenancy by surrender thereof; and consequent taking over possession by the landlord. How such termination of tenancy could take place is provided for in [SECTION] of the Act in terms whereof inter-alia a surrender of the tenancy becomes a legal one only when such surrender is in writing and verified before the [ENTITY] in the prescribed manner. For the said purpose the [ENTITY] is also required to hold an enquiry. It is not in dispute that purported surrender made by the predecessor-in- interest in favour of the respondents herein was although considered to be voluntary but the same did not satisfy the very legal requirement, contained in [SECTION] of the Act.
7. [SECTION] of the Act, as noticed hereinbefore, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in-interest of the appellant in favour of the [ACT] Page 12 of 28 Created On Mon Aug 21 02:36:48 IST 2017 respondent is found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof shall also be invalid. In such an event, although the landlord takes a physical possession of the land, the right to possess them same remains with the tenant. He could recover possession of the said land in accordance with law. The said Act is a beneficent statute. It should be construed in favour of the tenant and against the landlord. The protection given to the tenant in terms of the said Act must be given full effect. So construed, the expression possession' would also include right of possession. The view which we have taken is fortified by the decisions of this Court in [ENTITY] (dead) by Lrs & Ors. v, Govind Joti Chavare & Ors., [1975] 1 SCC 559; [ENTITY] & Anr. v. Kishan Ganpat Bharaskal & Ors., [1971] 1 SCC 15 and in [ENTITY] Shaikh Jumma & Anr. v. Dashrath Indas Nhavi & Ors., AIR (1987) SC 1626 and thus the consistent view had been that the surrender by the tenant for being legal must be in conformity with the provisions contained in [SECTION] and [SECTION] of the Act.
8. In [ENTITY] (supra) the question arose for consideration was whether the alleged surrender by the tenant was valid. This Court after interpreting [SECTION] and [SECTION] was of the view that the amendment was brought with a view to protecting the tenant on two fronts against two types of danger - one against possible coercion, undue influence and trickery proceedings from the landlord and other against the tenant's own ignorance, improvidence and attitude of helpless self- resignation stamming from his weaker position in the tenant-landlord relationship and, therefore, [SECTION] and [SECTION] are mandatory in nature and any departure from this would make the surrender invalid. It was also held that the imperative language, the beneficent purpose and importance of these provisions for efficacious implementation of the general scheme of the Act; - all unerringly lead to the conclusion that they were intended to be mandatory. Neglect of any of these statutory requisites would be fatal. Disobedience of even one of these mandates would render the surrender invalid and ineffectual and the consequence of the violation of the mandatory provisions namely [SECTION] and [SECTION] would be that the surrender would be rendered [ACT] Page 13 of 28 Created On Mon Aug 21 02:36:48 IST 2017 non-est for the purpose of [SECTION] and [SECTION].
9. In [ENTITY]'s case (supra) this Court considered the analogous provisions of the [ACT] and held that the provisions are mandatory in nature and any violation of the Act would render the surrender invalid.
10. In [ENTITY]'s case (supra) this Court while interpreting [SECTION] and [SECTION] of the Act held that the provisions are mandatory in nature and any violation of the said provisions would render the surrender invalid
11. [SECTION] which was brought in by the amendment in the year. 1969 reads thus :
"Where a tenant who was in possession On the appointed day and who, on account of his being dispossessed before the 1st day of April, 1957 otherwise than in the manner and by an order of the Tahsildar as provided in [SECTION], is not ia possession of the land on the said date and the land is in the possession of the landlord or his successor-in-interest on the 31st day of July, 1969 and the land is not put to a non-agricultural use on or before the last mentioned date, then, the Tahsildar shall, notwithstanding anything contained in the said [SECTION], either suo motu or on the application of the tenant; hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the case may be, his successor-in interest, and shall be restored to the tenant; and thereafter, the provisions of this section and [SECTION] (both inclusive) shall, insofar as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him.
Provided that the tenant shall be entitled to restoration of the land tinder this sub-section only if he undertakes to cultivate the land personally and of so much; thereof as together with the other land held by him as owner or tenant shall not exceed the Ceiling area"
12. The salient features of [SECTION] of the act are [ACT] Page 14 of 28 Created On Mon Aug 21 02:36:48 IST 2017 (1) that the tenant must be in possession of land on 15.6.1955 and (2) the tenant was evicted otherwise than by an order of the [ENTITY] before 1.4.1957 and (3) the landlord or his successor-in-interest which includes persons who acquire interest by testamentary disposition or devolution on death must be in possession as on 31.7.1969 and (4) the land is not put to a non- agricultural use before 31.7. 1969.
13. in the case of [ENTITY] (supra), however a somewhat contrary view was taken by this Court while interpreting the said proviso. This decision was rendered by a bench of three Judges and one of them disagreed with the majority judgment. The majority held that any voluntary surrender would be a valid surrender . It was held that voluntary giving up of possession would not amount to dispossession unless the law provides for it and the provisions should be construed liberally- It may be pointed out that. this Court .while holding so, only considered the provisions of [SECTION] of the Act and did not refer to [SECTION] and [SECTION] of the Act which mandated its Compliance for a valid surrender.
14. The learned Judges although touched upon the question as regards obtaining legal possession, unfortunately failed" to notice the mandatory provisions of [SECTION] & [SECTION] of the Act. Once it is held that the provisions of [SECTION] & [SECTION] are 'mandatory, it goes without saying that possession obtained by the landlord in violation of such mandatory provisions would be illegal. A Statute, as is well known, must be read in its entirety. The expression "Dispossession having regard to the text and context of the Act cannot be given its natural meaning. The High Court arrived at a finding of fact that the appellant herein had satisfied all the requirements as contained in [SECTION] of the Act. The High Court, however, relying on or on the basis of the decision of this Court in [ENTITY] (supra), dismissed the appeal of the appellant. The High Court, as noticed hereinbefore, however, felt that the question raised is of great general importance.
15. Haying given our anxious thought, we are of the opinion that for the reasons stated; hereinbefore, the decision of this Court in [ENTITY] [ACT] Page 15 of 28 Created On Mon Aug 21 02:36:48 IST 2017 (supra), haying not noticed the earlier: binding, precedent of the co-ordinate Bench, and. haying not considered the mandatory provisions as contained in [SECTION] & [SECTION] .of the Act had been rendered per incuriam. It, therefore, does not constitute a binding precedent.
16. In Halsbury 'Laws of England, 4th Edition Volume 26 it is stated ;
"A decision is given per in curiam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when if has acted in ignorance of a Horse of Lords decisions, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."
In [PRECEDENT], this Court observed :
"Incuria" literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young versus Bristol Aeroplane Co. Ltd.) Same has been accepted approved and adopted by this Court while interpreting [SECTION] of the [ACT] which embodies the doctrine of precedents as a matter of law."
17. In [PRECEDENT], it has been held as follows :
"Rule of per in curiam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
18. Furthermore, this Court, while rendering judgment in [ENTITY] (supra), was bound by its earlier decision of Co-ordinate Bench in [ENTITY] (supra). We are bound to follow the earlier judgment which is precisely on the point in preference to the later judgment which has been rendered without [ACT] Page 16 of 28 Created On Mon Aug 21 02:36:48 IST 2017 adequate argument at the bar and also without reference to the mandatory provisions of the Act.
19. Learned counsel appearing for the respondent than urged that the Tribunal has recorded a finding of fact that the landlord has transferred the land to the purchaser and, thus, he being no longer in possession, no benefit order could be passed in favour of the appellant.
20. The contention of the respondent was that he has executed an agreement for sale in the year 1967 with one [ENTITY] and, therefore, the landlord is not in possession. It is no doubt true that the Tribunal recorded a finding that the purchaser was in possession. Surprisingly, however, on perusal of the relevant documents, we find that the case set up by the respondent that he has executed an agreement for sale was not correct. In fact it was a mortgage with the right of re-conveyance and as such it was not an agreement for sale. Thus, the mortgagee was in possession of the land on behalf of the landlord because no title or interest was passed on in favour of the mortgagee, in so far as no registered document was executed transferred the interest in the land by the landlord in favour of the mortgagee.
21. In absence of any registered document having regard to the provisions contained in [SECTION] and [SECTION] of the [ACT], no lawful title could pass on to the mortgagee. Lawful title as well as the legal possession of the land in question therefore remained with the landlord. The so-called mortgagee in the aforementioned circumstances must be held to have merely in permissive possession of the land. Such a possession, on the part of the so-called mortgagee, being not in his own right, the land could have been restored in favour of the appellant. The Appellate Authority correctly analysed the legal position. It is true that the Tribunal while reversing the judgment and order of the Appellate Authority came to a finding that a third party was in possession but such purported finding of fact has been arrived at on applying wrong legal tests and without taking into consideration the effect of the provisions of the [ACT] and also the [ACT]. In that view of the matter, the finding of the Tribunal was not sustainable. It is only in that premise the High Court arrived at a finding that the appellant has [ACT] Page 17 of 28 Created On Mon Aug 21 02:36:48 IST 2017 satisfied all conditions laid down under [SECTION] of the Act.
22. In view of our findings that the decision in [ENTITY] (supra) had been rendered Per in curiam and did not create a binding precedent, the judgment of the High Court having been rested solely thereon cannot be sustained. It is set aside accordingly. For the aforementioned reasons, the appeal deserves to be allowed. The appeal is allowed accordingly, judgment under challenge is set aside. There shall be no order as to costs. "
5. The principal argument of Mr. [ENTITY] is that as the surrender was not in accordance with the provisions of [SECTION] and [SECTION] of the Act, the proceedings under [SECTION] should have been allowed in favour of his clients.
6. On the other hand, this petition has been vehemently opposed by Ms. [ENTITY], the learned AGP appearing for the State and Mr. [ENTITY], the learned counsel appearing for the respondents Nos.2 and 3.
7. Both the learned counsel submitted that no error, not to speak of any error of law could be said to have been committed by the authorities in passing the impugned orders. It is submitted that no interference is warranted in exercise of the supervisory jurisdiction of this Court under [SECTION] of the [ACT].
8. All the three authorities concurrently have taken the view that the proceedings initiated under [SECTION] of the [ACT] were thoroughly misconceived and not maintainable. It is submitted that a mere wrong decision without anything more would not be sufficient for this Court to invoke its supervisory jurisdiction under [SECTION] of the [ACT] Page 18 of 28 Created On Mon Aug 21 02:36:48 IST 2017 [ACT]. It is submitted that the petition deserves to be rejected in limine.
9. [ENTITY] has been placed on a Division Bench decision in the case of [ENTITY] vs. [ENTITY], Letters Patent Appeal No.1278 of 2016 in the [CASE NUMBER]. Ms. [ENTITY], the learned AGP, has placed reliance on the observations made by the Division Bench starting from para-7 right upto para-19.
"[7] It transpires from the record that land bearing survey no.240, 241 and 253 situated at Village Sama belonged to landlord - [ENTITY]. [ENTITY] was occupying the said lands as protected tenant since 1951 52. He was in possession of the said lands till 1965. It is the case of the petitioners that [ENTITY] had become deemed purchaser of the lands in question. Thereafter, Entry No.1020 was mutated in record of right on 05.03.1966 on the basis of order dated 03.03.1966 passed by the [ENTITY] in [CASE NUMBER] whereby name of [ENTITY] was deleted from second right. After deletion of name of [ENTITY], original landlord sold the lands in question by executing two different sale deeds in favour of [ENTITY] and [ENTITY]. After execution of sale deed, necessary entries were also made in the revenue record in favour of aforesaid two persons. After a period of more than 23 years, [ENTITY] and ALT initiated suo moto proceedings under [SECTION] of the Act against original owners.
[8] Thus, in this appeal it is required to consider whether provisions of [SECTION] of the Act is applicable to the facts of the present case or not and whether suo moto powers can be exercised after a period of 23 years or not? For considering aforesaid questions, relevant provisions of the Act and Rules are required to be examined. [SECTION] of the Act read as under :-
[SECTION]. Tenants deemed to have purchased land on tillers day.
(1) xxx [ACT] Page 19 of 28 Created On Mon Aug 21 02:36:48 IST 2017 (1A) xxx (1B) Where a tenant who was in possession of land on the appointed day and who, on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in [SECTION] or any other provision of this Act, is not in possession of such land or any part thereof and such land or part thereof is in the possession of the landlord or his successor in interest on the said date and such land or part thereof is not put to a nonagricultural use on or before the said date, then the [ENTITY] shall, notwithstanding anything contained in the said [SECTION] or any other provision of this Act either suo motu or on an application of the tenant made within the prescribed period hold an inquiry and direct that such land or as the case may be, part thereof shall be taken from the possession of the landlord or, as the case may be, his successor in interest, and shall be restored, to the tenant; and thereafter, the provisions of this Section and [SECTION] (both inclusive) shall, so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on which such land or, as the case may be, part thereof is restored to him;
Provided that the tenant shall be entitled to restoration of the land or part thereof, as the case may be, under this subsection only if he gives an undertaking in writing within such period as may be prescribed to cultivate it personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area.
Provided further that
(i) if the tenant fails to give such undertaking within such prescribed period, or if the tenant, after giving such undertaking, refuses to accept the tenancy or possession of the lands, the land the possession of which the landlord or as the case may be, his successor in interests is not entitled to retain under this subsection; or
(ii) if the tenant gives such undertaking and accepts such tenancy or possession of the land, such portion of the [ACT] Page 20 of 28 Created On Mon Aug 21 02:36:48 IST 2017 land referred to in clause (i) to the restoration of which the tenant would not be entitled under the first proviso, Shall vest in the State Government free from all encumbrances, and shall be disposed of in the manner provided in [SECTION]
Explanation. In this subsection, successor in interest means a person who acquires the interest by testamentary disposition or devolution on death.
[8.1] [SECTION] of the Act as it stood at the relevant time with regard to termination of tenancy by surrender provide as under :-
15. Termination of tenancy by surrender thereof.
(1) A tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlords:
Provided that such surrender shall be in writing, and verified before the [ENTITY] in the prescribed manner.
(2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in so far as the conditions are applicable subject to the like conditions as are provided in [SECTION] and [SECTION] for the termination of tenancies.
(2A) The [ENTITY] shall, in respect of the surrender verified under subsection (1), hold an inquiry and decide whether the landlord is entitled under subsection (2) to retain the whole or any portion of the land so surrendered and specify the extent and particulars in that behalf.] (3) The land, or any portion thereof, which the landlord is not entitled to retain under subsection (2), shall be liable to be disposed of in the manner provided under [SECTION]
[ACT] Page 21 of 28 Created On Mon Aug 21 02:36:48 IST 2017 [8.2] [SECTION] of the Rules provide as under :-
15-A. Period within which application under [SECTION] shall be made An application under [SECTION] by a tenant specified in that sub-section shall be made within a period of one year from the coming into force of the [ACT].
[9] Keeping in mind aforesaid provisions of the Act and Rules, if aforesaid facts of the present case are examined, it is not disputed that [ENTITY], predecessor-in-title of the petitioners was occupying the lands in question as tenant on the appointed day i.e. 15.06.1956 as referred in [SECTION] of the Act. It is also not disputed that he was not in possession of the lands in question on the specified dated i.e. 03.03.1973 as referred to in the said provision. It is also not in dispute that name of [ENTITY] was deleted from the record of rights vide Entry No.1020 which was certified as per order dated 03.03.1966 passed by the RTS [ENTITY] in [CASE NUMBER].
Thereafter, original landlord sold the lands in question to [ENTITY] and [ENTITY] by two registered sale deed executed on 22.05.1967 in respect of which Entry No.1216 and 1217 was mutated in favour of aforesaid persons on 27.11.1967. It is also not disputed that the petitioners have not initiated any proceedings within one year as stated in [SECTION] of the Rules after coming into force of the [ACT]. It is further not in dispute that [ENTITY] and ALT initiated suo moto proceedings under [SECTION] of the Act after a period of more than 23 years after said entries were mutated in the revenue record and sale deeds were executed by the original owner / landlord.
[10] Provisions of [SECTION] of the Act can be invoked if tenant was in possession of the lands in question on the appointed date; if he was dispossessed from such land by the landlord at any time before the specified date, otherwise than in the manner provided under [SECTION] or any other provisions of the said Act; if the lands in question or part thereof was in possession of the landlord or his successor in interest on the said date i.e. 03.03.1973 and if such land or part thereof was [ACT] Page 22 of 28 Created On Mon Aug 21 02:36:48 IST 2017 not put to non agricultural use on or before the said date.
[11] In the present case as discussed herein above, it cannot be said that tenant was dispossessed from the lands in question by landlord at any time before the specified date, otherwise than in the manner provided under [SECTION] or any other provisions of the said Act. From Entry No.1020 it is clear that [ENTITY] passed order on 03.03.1966 in [CASE NUMBER] by which name of tenant [ENTITY] was deleted from second right. Said entry was never challenged. On the contrary [ENTITY] had put his signature as witness in two sale deed which were executed by the original owner landlord in favour of [ENTITY] and [ENTITY]. He has never initiated any proceedings by alleging that he was wrongly dispossessed from the lands in question. Thus, in view of aforesaid facts, we are of the view that in absence of any material on record it is difficult to hold that [ENTITY] was dispossessed by the landlord before the specified date as contemplated under [SECTION] of the Act.
[12] It is further clear from the explanation to [SECTION] of the Act that successor in interest means a person who acquires the interest by testamentary disposition or devolution on death. In the present case as discussed herein above, original landlord executed sale deed in favour of [ENTITY] and [ENTITY] on 22.05.1967. Thus aforesaid two persons acquired interest by testamentary disposition and therefore, said purchasers could not be said to successor in interest as per aforesaid explanation. Thus on the date of initiation of suo moto proceedings by the [ENTITY], the landlord or his successor in interest being not in possession of the lands in question, the provisions contained in [SECTION] of the Act were not applicable to the facts of the present case.
[13] Another question which is required to be examined is whether [ENTITY] and ALT can exercise suo moto powers under [SECTION] of the Act after a period of 23 years? It is true that there is no period of limitation prescribed for exercising suo moto power in the aforesaid section by the [ENTITY] and ALT.
[ACT] Page 23 of 28 Created On Mon Aug 21 02:36:48 IST 2017 [14] However in the case of Joint Collector [ENTITY] (supra), the Hon'ble Supreme Court has observed and held in paragraph No.25 and 31 as under :-
25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
[15] Thus, in view of aforesaid decision of the Hon'ble Supreme Court, it can be said that though there is no period of limitation prescribed for exercising suo moto powers under [SECTION] of the Act, such powers must be exercised within reasonable period.
[ACT] Page 24 of 28 Created On Mon Aug 21 02:36:48 IST 2017 Unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It is well settled that the principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. In the present case, as discussed herein above, there is no explanation for exercising suo moto powers after a period of 23 years by [ENTITY] and ALT. It is only when [ENTITY] and ALT after initiating proceedings under [SECTION] of the Act had withdrawn notice, said order was challenged by the petitioners by filing appeal before the Deputy Collector, but the petitioners have never initiated proceedings before the [ENTITY] and ALT. Thus, we hold that suo moto powers can be exercised by the [ENTITY] and ALT under [SECTION] of the Act within reasonable time.
[16] Learned advocate Mr. [ENTITY] has placed reliance on the decision rendered by the learned Single Judge in the case of [ENTITY] (supra) in support of his submission that [SECTION] of the Act is a beneficial provision enacted with a view to protect the rights of illiterate and ignorant tenants who might have been duped by their lands contrary to the provisions of the [ACT]. Such tenants might skip the period of one year's limitation as provided by the statutory rules ([SECTION] of the [ACT]). Aforesaid decision would not render any assistance to the petitioners in the facts of the present case. In the present case, the petitioner have not initiated any proceedings under [SECTION] of the Act but the [ENTITY] and ALT has initiated suo moto proceedings after a period of 23 years.
[17] Learned advocate Mr. [ENTITY] has placed reliance on the decision in the case of [ENTITY] (supra). However, said decision would not be applicable to the facts of the present case as in the present case name of the tenant has been deleted pursuant to order passed in [CASE NUMBER] and entry to that effect mutated in the record of rights.
[18] Similarly decision of the Hon'ble Supreme Court in the case of [ENTITY] (supra) relied by the [ACT] Page 25 of 28 Created On Mon Aug 21 02:36:48 IST 2017 learned advocate Mr.[ENTITY] is not applicable to the facts of the present case. Therefore, reliance placed by learned advocate Mr.[ENTITY] is misconceived.
[19] In view of aforesaid discussion and in view of the reasons recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge while dismissing the petition and therefore, present appeal is required to be dismissed. Accordingly, the appeal is dismissed. Civil Application also stands disposed of."
10. The picture that emerges on cumulative assessment of the materials on record is as under;
10.1 The predecessor-in-title of the applicants late [ENTITY] had stopped cultivating the land as a tenant. He made a statement on his own free will and volition dated 13th July, 1961 in this regard, which is at page-15, Annexure-A to this petition. After an appropriate inquiry in that regard, an order came to be passed deleting the name of [ENTITY] from the record of rights as a tenant.
10.2 After a period of 17 years thereafter, [ENTITY], once again, raised the issue before the [ENTITY] and called upon the [ENTITY] to fix the purchase price under [SECTION]G of the [ACT]. The [ENTITY] registered the proceedings as the [CASE NUMBER]. By an order dated 11th September, 1978, the proceedings under [SECTION]G were ordered to be dropped. While passing the said order, the [ENTITY] observed as under;
"However, when the possession of the land was handed over by the tenant is an important issue. As there was no [ACT] Page 26 of 28 Created On Mon Aug 21 02:36:48 IST 2017 tenant in respect of the land in question on 1.4.1957 or, thereafter, therefore, the order dated 13.7.1961 has been passed. It is not specifically mentioned in the said order that the applicant is a tenant. An order has been passed to the effect that on the contrary, the tenant has handed over the possession of the land in question since last four years, meaning thereby that a new issue under [SECTION] [ACT] has arisen that whether there is any tenant on the land in question before 1.4.1957 or not, i.e., in the year 1955-56. It appears that after the reply was filed by the tenant in the [CASE NUMBER], the matter was pending for investigation under [SECTION] of the [ACT] because [SECTION] has been mentioned over the proceedings. As the investigation under [SECTION] is pending, till further order being passed by the Government, no investigation pursuant to the order be made, i.e, the investigation would be pending.
Issue No.3 As discussed in the above issue, as there was no tenant as on 1.4.1957, at this stage, there is no requirement to determine the purchase price and, hence, my answer to this issue is in negative.
Final Order As per the order dated 13.7.1961 passed in respect of the said land, the land in question is a Gharkhed land of the owner and it is not established that the applicant has purchased it and the process of selling it has been abandoned, the issue does not fall within the jurisdiction of this Court and, hence, the application of the applicant is hereby rejected.
As the issue whether the tenants had the possession of the land in question in the year 1955-56 or not is to be investigated under [SECTION] of the [ACT], and the investigation regarding the said issue would be initiated after obtaining necessary instructions from the Government, meaning thereby the case under [SECTION] of the [ACT] in respect of the land in question is to kept pending and an entry in this regard would be made in the register."
[ACT] Page 27 of 28 Created On Mon Aug 21 02:36:48 IST 2017 10.3 It appears that the authorities, on their own, decided to initiate inquiry under [SECTION], which, ultimately, led to the passing of the order by this Court dated 25th April, 1997 in the [CASE NUMBER].
10.4 There are concurrent findings recorded by the three authorities that no case is made out for restoration of the possession to the legal heirs of the original tenant now after a period of almost 55 years on the ground of breach of the provisions of [SECTION] and [SECTION] of the [ACT]. All the three authorities have taken the view that there is no breach of the provisions of [SECTION] and [SECTION] of the Act. I should be conscious of the fact that I am exercising my supervisory jurisdiction under [SECTION] of the [ACT].
10.5 Ms. [ENTITY], the learned AGP and Mr. [ENTITY], the learned counsel appearing for the respondents Nos.2 and 3 are justified in submitting that assuming for the moment that there is some error, without admitting the same, by itself, would not be sufficient to disturb the findings under [SECTION] of the [ACT]. I see no good reason to entertain this petition.
11. In the result, this application fails and is hereby rejected.
([ENTITY], J.) [ENTITY] [ACT] Page 28 of 28 Created On Mon Aug 21 02:36:48 IST 2017