SCA/1296/1995 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1296 of 1995 WITH SPECIAL CIVIL APPLICATION No.3108 of 1995 For Approval and Signature: sd/- HON'BLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MADANLAL GOVINDRAM CHHOTMURAD & 4 - Petitioner(s) Versus AMBALAL H PATEL & 1 - Respondent(s) ========================================================= Appearance : IN SPECIAL CIVIL APPLICATION NO.1296/1995 : MR SUNIL MEHTA FOR MR SK BUKHARI for Petitioners MS TRUSHA PATEL FOR MR AJ PATEL for Respondent No: 1. NONE PRESENT for Respondent No(s).: 2. IN SPECIAL CIVIL APPLICATION NO.3108/1995 : SCA/1296/1995 2/47 JUDGMENT MS TRUSHA PATEL FOR MR AJ PATEL for Petitioners MR SUNIL MEHTA FOR MR SK BUKHARI for Respondent No.1 RULE SERVED for Respondent No.2 - Absent ================================================= CORAM : HON'BLE MS.JUSTICE H.N.DEVANI Date : 11/08/2005 CAV JUDGMENT 1. In both these petitions, the judgement and order dated 20.7.1994 passed by the Gujarat Revenue Tribunal (Tribunal) in Revision Application No.TEN BA 83 of 1990 is subject matter of challenge and the parties to both the petitions are common, hence, both the petitions were heard together and are disposed of by this common order. 2. In Special Civil Application No.1296 of 1995, the petitioners therein have challenged the aforesaid order of the Tribunal only to the extent the Tribunal has observed that "The only right which the applicant gets is that he continues to be the tenant of the suit survey number and the custodian could not cancel the lease or allotment of the evacuee property as he was empowered under Section 12 of the Evacuee Property Act"; whereas in SCA/1296/1995 3/47 JUDGMENT Special Civil Application No.3108 of 1995, the petitioner therein has challenged the aforesaid order of the Tribunal as well as the order passed by the Deputy Collector (Land Reforms) (Appeals) Kheda, which was confirmed by the Tribunal and seeks restoration of the order dated 22.10.1981 passed by the Mamlatdar and Agricultural Lands Tribunal, Khambhat. For the sake of convenience the petitioners of Special Civil Application No.1276 of 1995 are referred to as the petitioners, and the petitioner of Special Civil Application No.3108 of 1995 is referred to as the respondent No.1. 2.1 The common facts involved in both the petitions are that the father of the respondent No.1 had become a deemed purchaser of land admeasuring Acres 5-10 gunthas, bearing Survey No.681 of village Nagra, Taluka Khambhat, District Kheda (hereinafter referred to as the subject lands). The tenancy in his favour was created in the year 1928; and he had since being cultivating the subject lands. It appears that there are entries in the revenue record evidencing cultivation of the subject lands by the father of the respondent SCA/1296/1995 4/47 JUDGMENT No.1, as tenant. 2.2 The aforesaid lands admeasuring 5 Acres and 10 guthas, bearing Survey No.681 of village: Nagra, Taluka: Khambhat, District: Kheda, came to be declared as evacuee property under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Evacuee Property Act) and the same were allotted to one Rahermal Khajomal, the predecessor of the petitioners, vide a certificate dated 29.11.57, under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter referred to as the Displaced Persons Act). The petitioners made efforts to obtain possession of the said lands from the respondent No.1, namely Ambalal Hirabhai Patel and his forefathers; however, they failed to get back the possession. It is the case of the petitioners, that as the lands were allotted to the petitioners, the respondent No.1 was an unauthorised occupant of the said lands. 2.3 The respondent No.1 made an application under Section 32G of the Bombay Tenancy and Agricultural SCA/1296/1995 5/47 JUDGMENT Lands Act, 1948 (hereinafter referred to as the Tenancy Act) before the Additional Mamlatdar & Agricultural Lands Tribunal, Khambhat (hereinafter referred to as the Mamlatdar) for the purpose of fixing the purchase price of the subject lands. The application was numbered as Tenancy Case No.98 of 1981. Before the Mamlatdar, it was contended by the respondent No.1 that he was a permanent tenant of the said land under the provisions of the Tenancy Act and was therefore, entitled to purchase the said land under Section 32 G of the said Act. The Mamlatdar, by his order dated 22.10.1981, fixed the purchase price and issued necessary consequential directions in accordance with the provisions of the Tenancy Act. 2.4 Being aggrieved by the aforesaid order dated 22.10.1981, the petitioners preferred an appeal before the Deputy Collector (Land Reforms) (Appeals), Kheda (hereinafter referred to as the Deputy Collector) being Tenancy Appeal No.282 of 1988. The Deputy Collector, by an order dated 21.7.1989, allowed the appeal and set aside the order of the Mamlatdar and Agricultural Lands Tribunal. SCA/1296/1995 6/47 JUDGMENT 2.5 The respondent No.1, challenged the order of the Deputy Collector by way of a revision application before the Gujarat Revenue Tribunal (hereinafter referred to as the Tribunal), being Revision Application No.TEN BA 83 of 1990. By a judgement and order dated 20.7.1994, the Tribunal rejected the Revision Application filed by the respondent No.1, however, while rejecting the said application, the Tribunal observed as follows: "The only right which the applicant gets is that he continues to be the tenant of the suit survey number and the custodian could not cancel the lease or allotment of the evacuee property as he was empowered under Section 12 of the Evacuee Property Act." 2.6 The petitioners are aggrieved by the aforesaid judgement and order dated 20.7.1994 to the extent of the aforesaid observations only, whereas the respondent No.1 is aggrieved by the rejection of his revision application. 3. Heard Ms. Trusha Patel for Mr. A.J. Patel, the learned Advocate appearing on behalf of the SCA/1296/1995 7/47 JUDGMENT petitioner in Special Civil Application No.3108 of 1995 and on behalf of the respondent No.1 in Special Civil Application No.1296 of 1995 and Mr. Sunil Mehta for Mr. S.K. Bukhari, the learned Advocate appearing on behalf of the petitioners in Special Civil Application No.1296 of 1995 and on behalf of the respondent No.1 in Special Civil Application 3108 of 1995. Though served, there is no appearance on behalf of the respondent State authorities. 4. Ms. Trusha Patel, the learned Advocate for the respondent No.1 submitted that the undisputed facts of the case are that the subject lands belonged to one Naaz Begum and that one Shri Dahyabhai, the grandfather of the respondent No.1 was holding the subject lands as a tenant since 1928. That, pursuant to an inquiry made by the Mamlatdar under section 70(b) of the Tenancy Act, it was held that the grandfather of the respondent No.1 was a protected tenant and entry in respect of the same was made in the revenue record by mutation Entry No.1103. That, thereafter pursuant to inquiry under Section 70(b) of the Tenancy Act, the grandfather of the respondent No.1 was SCA/1296/1995 8/47 JUDGMENT declared to be a permanent tenant and entry to that effect was made in the revenue record, village form No.6 on 11.12.1966, by way of mutation entry No.2062. It was argued that the said mutation entries have not been challenged and have attained finality. 4.1 The learned Advocate submitted that in the year 1950, the said landlady migrated to Pakistan and the subject lands were declared to be Evacuee Property by a notification dated 28th February, 1954. That, the subject lands had been allotted to one Rahermal Khajomal, the predecessor of the petitioners on 29.11.57 under the Displaced Persons Act, as he had migrated from Pakistan. It was submitted that the possession of the subject lands had never been handed over to the predecessor of the petitioners, who was residing in Maharashtra since then. The learned Advocate submitted that upon the lands having been allotted to the said Rahermal Khajomal, the lands ceased to be evacuee property and the provisions of the Evacuee Property Act ceased to apply to the said lands. That, from 1957 the subject lands formed part of the compensation pool as the same were SCA/1296/1995 9/47 JUDGMENT allotted to the predecessor of the petitioners, therefore, there, was no question of non- application of the provisions of the Tenancy Act in respect of the said lands. Hence, the purchase price had rightly been fixed under the provisions of Section 32G of the Tenancy Act. The learned Advocate placed reliance upon a decision of the Apex Court in the case of Basant Ram v. Union of India, AIR 1962 SC 994 for the proposition that the consequence of a notification under Section 12(1) of the Displaced Persons Act, is that all rights, title and interest of the evacuees in the property ceased with the result that the property no longer remained evacuee property. Once the property ceased to be evacuee property, it cannot be dealt with under the Evacuee Property Act or the rules framed thereunder. The property became part of the compensation pool and could be dealt with under the provisions of the Displaced Persons Act. 4.2 The learned Advocate submitted that the overriding effect of the Evacuee Property Act does not affect the rights of the respondent No.1. It was submitted that there is a distinction between SCA/1296/1995 10/47 JUDGMENT evacuee and non-evacuee interest. That, what could be vested in the Custodian would be only an evacuee interest and the rights of the respondent No.1 would not be affected. In support of her contention, reliance was placed upon the decision of a Division Bench of this Court rendered in the case of Pirdhandas Parsumal v. Hajrabai Mahomad, (1968) 9 GLR 24, wherein it has been held that the vesting that is contemplated under Section 12(2) of the Evacuee Property Act is the vesting of the evacuee property, that is, the right, title and interest of the evacuee in the property and not the interest of the non-evacuee in the property. 4.3 The learned Advocate pointed out that sub-section (1) of Section 12 of the Evacuee Property Act empowers the Custodian to cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, however, the proviso thereto provides that in case of any lease granted before the 14th day of August 1947, the Custodian shall not exercise any of the powers conferred upon him under the said sub-section and submitted that the said provision itself specifies SCA/1296/1995 11/47 JUDGMENT that tenancy prior to 1947 cannot be terminated. The learned Advocate submitted that the forefathers of the respondent No.1 held the subject lands much before 14th August 1947, hence, the Custodian did not have the power to terminate the tenancy of the respondent No.1. Accordingly, the respondent No.1 continued to be a tenant in relation to the subject land despite the same having vested in the Custodian under the provisions of the Evacuee Act. 4.4 It was submitted that in 1957 even if the property vested absolutely in the Central Government, even then on the date of allotment to the petitioners i.e. on 29.11.1957 the respondent No.1’s tenancy was subsisting, hence the provisions of Section 88 would not come in his way. In support of her contention the learned Advocate placed reliance upon the decision of the Bombay High Court in the case of Saheblal Chandbhai v. Chandanmal Kundanmal, AIR 1979 Bombay 295, wherein the Court had followed an earlier decision where it had been held that the benefits of the Tenancy Act would be available to a tenant inducted on the land by the managing authority during the period of SCA/1296/1995 12/47 JUDGMENT management. It had been held that the only requirement was that such tenancy must have been subsisting on the date the management came to end. 4.5 The learned Advocate referred to the provisions of Section 89 of the Tenancy Act which provide for repeal of the enactments specified in the Schedule I thereto, and pointed out that by virtue of clause (b) of sub-Section (2) of Section 89, nothing in the act or any repeal affected thereby would, save as expressly provided by the Act affect or be deemed to affect any right, title, interest, obligation, liability already acquired, accrued or incurred before the commencement of the Act. It was contended that assuming that the provisions of Section 88 were applicable, even then there is a specific exclusion in Section 89(2)(b)(1) of the Tenancy Act. Reliance was placed upon the decision of the Supreme Court in the case of Parvati v. Fatehsinhrao, AIR 1986 SC 2204 in support of the proposition that the provisions of Section 88 of the Tenancy Act are not of a confiscatory nature so as to take away from the tenant the status of protected tenant already accrued to him. It was urged that the SCA/1296/1995 13/47 JUDGMENT Displaced Persons Act, cannot upset the rights of tenants to provide the same to others. 4.6 The learned Advocate also relied upon an unreported decision of this Court in Appeal from Order No.128 of 1972, dated 11.11.1975 to contend that if the Government does not continue to be the owner, the exemption embodied in section 88(1)(a) of the Tenancy Act would not be available and that in that event the Tenancy Act would be applicable to the subject lands. 4.7 The learned Advocate submitted that it was only the right, title and interest of the evacuee- property that vested in the Custodian. That, as the possession was always with the respondent No.1 in his capacity as tenant, it was only the occupancy rights of the evacuee-landlady that had vested in the Custodian. In conclusion it was submitted that the petition filed by the respondent No.1 was required to be allowed and that filed by the petitioners was required to be rejected. SCA/1296/1995 14/47 JUDGMENT 4.8 Mr. Sunil Mehta, the learned Advocate for the petitioners submitted that the subject lands had been acquired by the Central Government under the provisions of the Displaced Persons Act. The respondent No.1 was the tenant of the subject lands which were held by the Central Government, and as such the provisions the Tenancy Act were not applicable to the subject lands, hence, the respondent No.1 had no right to purchase the subject lands, accordingly the Deputy Collector had rightly set aside the order of the Mamlatdar, and that the Tribunal was justified in rejecting the Revision Application filed by the respondent No.1. 4.9 The learned Advocate submitted that the Tribunal had erred in relying upon the decision of this Court reported in 9 GLR 24, as the said decision was rendered in relation to the question of residential accommodation where there were no prohibitory provisions like Section 88 of the Tenancy Act. That, the said decision cannot be made applicable to the facts and circumstances of the present as there is a prohibition under Section 88 of the Tenancy Act to the subject SCA/1296/1995 15/47 JUDGMENT lands. It was submitted that when the Tribunal had come to the conclusion that the respondent No.1 had no right to purchase the subject lands under the Tenancy Act, the question of permitting the respondent No.1 to continue as tenant did not arise at all. That, therefore the Tribunal had erred in holding that the respondent No.1 had the right to continue to be the tenant of the subject lands. 4.10 In support of his contentions the learned Advocate placed reliance upon the decision of the Supreme Court in the case of Basant Ram v. Union of India (supra) as well as the decision of the Bombay High Court in the case of Promod Bhat v. Kanwar Raj, AIR 1954 Bombay 518. 5. Upon perusal of the record of the case as available before this Court, it appears that grandfather of the respondent No.1 was in possession of the subject lands since 1928 and that there are entries to that effect in the revenue records. The subject lands were owned by one Naaz Begum, who migrated to Pakistan in 1950 and that even thereafter the father of respondent SCA/1296/1995 16/47 JUDGMENT No.1 continued to be in possession of the said lands. The subject lands had been declared to be evacuee property by a notification dated 11.7.1953 issued by the Deputy Custodian of Kheda under the provisions of sub-Section (4) of Section 8 of the Evacuee Property Act. Thereafter, the Central Government acquired the subject lands under the provisions of Section 12 of the Displaced Persons Act, whereupon the evacuee property vested in the Central Government free from all encumbrances. The evacuee property so acquired formed part of the compensation pool as provided under the provisions of sub-Section (4) of Section 12 of the said Act. 5.1 By an order dated 29.11.1957, the subject lands were allotted to Rahermal Khajomal, a migrant from Pakistan, under the provisions of the Displaced Persons Act. Despite several efforts Rahermal Khajomal could not acquire possession of the said lands. In the meanwhile, the Mamlatdar carried out an inquiry under Section 70(b) of the Tenancy Act and declared the father of the respondent No.1 to be a permanent tenant in relation to the subject lands, which was recorded in the record of rights by mutation entry No.2062 dated 11.12.66. The said SCA/1296/1995 17/47 JUDGMENT entry was certified on 26.9.67. 5.2 Rahermal Khajomal expired in 1979, and his heirs were brought on record. 5.3 On 12.10.1981, the petitioner’s father Hirabhai Dahyabhai made an application under Section 32G of the Tenancy Act before the Mamlatdar, for determining the purchase price of the subject lands. The Mamlatdar, by his order dated 22.10.1981, fixed the purchase price of the subject lands. In the said order it was observed that the Talati-cum-Mantri, Nagra, had given a certificate that the land owners were not residing in the village and that their address was not known, hence, the matter was proceeded with exparte. The Mamlatdar held that the applicant is a permanent tenant, hence, the purchase price is required to be determined and accordingly, fixed the purchase price at Rs.300.16 ps. 5.4 Thereafter, it appears that the Deputy Collector had called for the papers of the aforesaid case and had opined that it was not necessary to exercise revisional powers under Section 76A of SCA/1296/1995 18/47 JUDGMENT the Tenancy Act in respect of the aforesaid order. 5.5 Being aggrieved by the aforesaid order dated 20.10.81 passed by the Mamlatdar, the petitioners after a period of more than six years preferred an appeal before the Deputy Collector on 1.8.88. The Deputy Collector by his order dated 31st July 1989, allowed the appeal and set aside the impugned order dated 22.10.81. The Deputy Collector held that there is no delay in preferring the appeal. That, there was an order of the Settlement Commissioner that the Tenancy Act is not applicable to agricultural lands of evacuees, which had been forwarded to all the departments, hence, the Mamlatdar ought not to have entertained an application under the Tenancy Act in respect of the subject lands. That, in view of the provisions of Section 4 read with Section 2(f) of the Evacuee Property Act, the provisions of the Tenancy Act would not apply to evacuee property and that, the impugned order is beyond the jurisdiction of the Mamlatdar. The Deputy Collector while allowing the appeal and setting aside the impugned order also held that upon entering the order in the revenue record the mutation entry No.2062 dated 11.12.1966 SCA/1296/1995 19/47 JUDGMENT would automatically stand cancelled. 5.6 Being aggrieved by the aforesaid order of the Deputy Collector the respondent No.1 approached the Gujarat Revenue Tribunal by way of a Revision Application. The Tribunal by its order dated 20.7.1994 dismissed the revision application. The Tribunal followed the decision of this Court in the case of Pirdhandas v. Hajrabai (supra) and held as follows: "8. The above cited case law is applicable to the present applicant only to the extent that he continues to be the tenant of the suit survey number. The purchasers cannot claim possession as right, title and interest of the original landlord who was evacuee. There is no provision in the Administration of Evacuee Property Act which may give fulfledged tenancy rights to the applicant. It is only due to the above cited case law that the applicant can claim to be the tenant of the suit survey number." "11. The legal position is, therefore, very clear. Under the provisions of the Administration of Evacuee Property Act and Displaced Persons (Compensation and Rehabilitation) Act, the applicant does not get any right to purchase the suit survey number under the provisions of the Bombay Tenancy Act. The only right which the applicant gets is that he continues to be the tenant of the suit survey number and the custodian could not cancel the lease or allotment of the evacuee property as he was empowered under Section 12 of the Evacuee Property Act. 12. Considering the legal position involved in the present case and also SCA/1296/1995 20/47 JUDGMENT considering the case law cited by both the parties, it is very clear that the judgement and order passed by the Dy. Collector is quite legal and proper. In the result, I do not find any reason to allow the Revision Application which deserves to be dismissed. Hence, Order. 13. ORDER Revision Application is dismissed." 5.7 The aforesaid order of the Gujarat Revenue Tribunal is subject matter of challenge in the present petitions. 6. For proper appreciation of the contentions raised in the petition, it would be necessary to take note of some of the material provisions of the Administration of Evacuee Property Act, 1950, the Displaced Persons (Compensation and Rehabilitation) Act, 1954 as well as the Bombay Tenancy and Agricultural Lands Act, 1948. 6.1 The Administration of Evacuee Property Act, 1950, was brought into force on 17.4.1951. From the preamble of the Act it appears that it is intended to be an Act to provide for the administration of evacuee property and for certain matters connected therewith. According to the Act, "evacuee SCA/1296/1995 21/47 JUDGMENT property", means any property of an evacuee (whether held by him as owner or as a trustee or as a beneficiary or a tenant or in any other capacity) and includes the property specified in sub-clauses (1) and (2) of Section 2(f). Property is defined to mean property of any kind and includes any right or interest in the property. The procedure for notifying evacuee property has been prescribed in Section 7. When any property, has been declared to be an evacuee property, Section 8 says that it shall be deemed to have vested in the Custodian for the State. 6.2 Section 4 of the Act which is a provision that has a material bearing on the point in question reads thus: "4. Act to override other laws: (1) The provisions of this Act and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply, or be deemed ever to have applied, to evacuee property.” SCA/1296/1995 22/47 JUDGMENT 6.3 Section 12 of the Act which is another important provision insofar as the issue in question is concerned, reads as under: "12. Power to vary or cancel leases or allotments of evacuee property.- (1)Notwithstanding anything contained in any other law for the time being in force, the