LPA/1681/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1681 of 2005 In SPECIAL CIVIL APPLICATION No. 14760 of 2005 With CIVIL APPLICATION No. 12124 of 2005 In LETTERS PATENT APPEAL No. 1681 of 2005 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 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 ? ========================================================= MAQBOOL MOHMED CHAUHAN - Appellant(s) Versus DY.COLLECTOR-BHARUCH. & 5 - Respondent(s) ========================================================= Appearance : MR HRIDAY BUCH for Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 Ms.Mini Nair, AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, UNSERVED-EXPIRED (R) for Respondent(s) : 3, MR MTM HAKIM for Respondent(s) : 4 - 5, 5.2.1, 5.2.2,5.2.3 - 6. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE SHARAD D.DAVE LPA/1681/2005 2/14 JUDGMENT Date : 11/09/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal preferred under Clause 15 of the Letters Patent arises from the judgment and order dated 16th September, 2005 passed in the above Special Civil Application No.14760 of 2005. The matter at dispute is the land Survey No.2663 admeasuring 1 Acre, 23 Gunthas situated at Jambusar (hereinafter referred to as “the Land”). The appellants-writ petitioners are the heirs and legal representatives of Bai Johra Jafar Fajal, owner of the Land. The respondents no.3 to 6 are successors of one Hussain Beg Mirza, the tenant in the Land. In the proceeding initiated under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as `the Tenancy Act'), by order dated 24th March, 1963, made by the Mamlatdar and Agricultural Lands Tribunal, the said Hussain Beg was held to be the purchaser of the Land. The price of the Land was determined to be Rs.2400/-. The said Hussain Beg was LPA/1681/2005 3/14 JUDGMENT required to pay the said sum of Rs.2400/- in four installments of Rs.600/- each. It appears that the said sale had not been effected i.e. the said Hussain Beg did not pay the purchase price until the year 1970. It should be noted here that the aforesaid order made under Section 32G of the Tenancy Act has not come on record. The above referred facts are gathered from the other materials on record. On 8th December, 1970, the said Hussain Beg appeared before the Mamlatdar and Agricultural Lands Tribunal. He made a statement that the land lady, the aforesaid Bai Johra, was in possession of the Land and that he did not want to pay the purchase price. How or when the said Bai Johra was put into possession of the Land has also not come on record. On 2nd April, 1979, the said Hussain Beg approached the Mamlatdar and Agricultural Lands Tribunal. He paid the purchase price of Rs.2400/-. On the said payment being made, the Mamlatdar and Agricultural Lands Tribunal issued the Sale Certificate as envisaged by Section 32M of the Tenancy Act. After issuance of Sale Certificate, the said Hussain Beg LPA/1681/2005 4/14 JUDGMENT passed away on 13th November, 1979. Armed with the said Sale Certificate, the present appellants – the heirs and successors of the said Hussain Beg instituted Regular Civil Suit No. 240 of 1981 in the Court of Civil Judge (S.D.), Jambusar for permanent injunction restraining the said Bai Johra from interfering with the possession of the plaintiffs of the Land. The said suit came to be dismissed on 30th April, 1984. The learned Civil Judge held that the plaintiffs were not in possession of the suit land. The said judgment and decree came to be confirmed by the learned Assistant Judge, Bharuch by his judgment and order dated 20th December, 1988 passed in Regular Civil Appeal No.18 of 1985. We are informed that the matter was not carried further and rested there. Thereafter, the respondents approached the Collector under Section 84 of the Tenancy Act for summary eviction of the said Bai Johra. According to the respondents, they were the lawful purchasers of the land and that the possession of Bai Johra was unauthorized and illegal. The said application was contested by the said Bai Johra. According to her, LPA/1681/2005 5/14 JUDGMENT she was in lawful possession of the land and that the Sale Certificate issued under Section 32M of the Tenancy Act was illegal and unenforceable. She also claimed ownership by adverse possession. The application was heard by the Dy.Collector, Bharuch. By his judgment and order dated 20th February, 1992, he allowed the application and directed summary eviction of the said Bai Johra. He rejected the claim of ownership by adverse possession. The said order was confirmed by the Gujarat Revenue Tribunal by its judgment and order dated 29th October, 2004 passed in Revision Application No.TEN. B.A.395 of 1992. The learned Tribunal was pleased to hold that “if as per his endorsement dated 8th December, 1970, he was not in possession, it can be said that he was dispossessed without due course of law.” The said order has been confirmed by the learned Single Judge by impugned judgment and order dated 16th September, 2005. The learned Single Judge was pleased to hold that “the certificate under Section 32M of the Act is a conclusive proof of the proceedings and in view of the fact that the proceedings under Section 32G of the Act have become final, it is not open for the LPA/1681/2005 6/14 JUDGMENT petitioners now to contend that the respondents no.3 to 6 are wrongfully declared as a deemed purchaser and/or tenant.” Therefore, the present Appeal. We are of the view that the learned Single Judge as well as the Tribunal and the authority below have manifestly erred in directing the inquiry on the premise that the said Bai Johra was in unauthorized possession of the land. The learned Single Judge and the Tribunal below have also erred in holding that in absence of challenge to the Certificate issued under Section 32M of the Tenancy Act, it was not open to the said Bai Johra to claim that she was in lawful possession of the land. It is not in dispute that the aforesaid Hussain Beg was the tenant in the land. In proceeding under Section 32G of the Tenancy Act, by order dated 24th March, 1963, the said Hussain Beg was held to be the purchaser of the Land. The price was fixed at Rs.2400/-. It is not disputable that the said Hussain Beg did not pay the purchase price at the relevant time. As late as on 8th December, 1970, LPA/1681/2005 7/14 JUDGMENT he made a statement before the Mamlatdar and Agricultural Lands Tribunal that the aforesaid Bai Johra was in possession of the Land and that he did not want to pay the purchase price. At that time also, he did not complain that he was dispossessed of the Land without due process of law or that he was forcibly evicted from the Land. Nor did he raise any dispute during his lifetime until November, 1979 i.e. for more than 16 years since the order dated 24th March, 1963. In the application made under Section 84 of the Tenancy Act also, the respondents did not come out with a case that the said Hussain Beg was forcibly evicted or dispossessed of the Land. In absence of any plea or evidence in support, the Tribunal below erred in holding that the said Hussain Beg “was dispossessed without due course of law.” The above finding recorded by the Tribunal was clearly a presumption and not a finding of fact. Further, once the tenant refused to pay the purchase price, the legal consequences should follow. In our view, the provisions relevant for the present Appeal are Sections 32K and 32M of the Tenancy Act. LPA/1681/2005 8/14 JUDGMENT Section 32 to 32I of the Tenancy Act make provisions for purchase of the land by the tenant on Tillers' Day; disposal of balance of lands; determination of purchase price etc. Section 32(K) of the Tenancy Act provides for mode of payment of price by tenant. Clause (i) of sub-section (1) thereof provides for deposit of the entire amount of the purchase price within one year from the date as may be fixed by the Tribunal. Sub-section (1) of Section 32M of the Tenancy Act reads as under: “On the deposit of the price in lump sum or of the last installment of such price, the Tribunal shall issue a certificate of purchase in the prescribed form, to the tenant in respect of the land. Such certificate shall be conclusive evidence of purchase. If a tenant fails to pay lump sum within the period fixed under clause (ii) of sub-section (1) of section 32K, or is at any time in arrears of four installments the purchase shall be ineffective and the land shall be at the disposal of the Collector under Section 32P and any amount deposited by such tenant towards the price of the land shall be refunded to him.” It is evident that the Sale Certificate under Section 32M of the LPA/1681/2005 9/14 JUDGMENT Act can be issued only when the tenant deposits the price in lumpsum or the last of the installment is paid. It also provides that “where a tenant fails to pay the lumpsum within the period fixed or is in arrears of four installments, the purchase shall be ineffective.” The words “period fixed” has to be the one specified in Section 32K of the Tenancy Act. The conjoint reading of the aforesaid provisions establishes the legislative intention. True Section 32 of the Act has brought about unprecedented aggregarian reforms. The tenant has been made owner of the land he tills as a matter of course. Nevertheless, he is required to pay the purchase price within the time specified. If a tenant fails to pay the purchase price determined under Section 32G of the Tenancy Act within the time specified or makes default in payment of installments as stated in sub-section (1) of Section 32M of the Tenancy Act, purchase shall become ineffective as a legal consequence. In that case, no authority is required to make specific order to declare the purchase ineffective. Such purchase would become LPA/1681/2005 10/14 JUDGMENT ineffective by force of law. In the present case, as recorded hereinabove, not only the aforesaid Hussain Beg did not pay the purchase price determined under Section 32G of the Act, he also expressed his unwillingness to pay such price. In our view, the failure on part of the said Hussain Beg to pay the purchase price, for whatever reasons, rendered the purchase ineffective. Once the sale had become ineffective, the Mamlatdar had no authority to issue Sale Certificate on tender of the purchase price on a subsequent day. As the said Hussain Beg had declared his intention not to pay the purchase price on 8th December, 1970, on and from that day, the sale had become ineffective. The tender of purchase price thereafter would not automatically revive the purchase. In our view, the action of the Mamlatdar in issuing the sale certificate on 16th April, 1979 was totally illegal and unsustainable. The learned Single Judge and the Tribunal below have also erred in holding that in absence of LPA/1681/2005 11/14 JUDGMENT challenge to the Sale Certificate issued under Section 32M of the Tenancy Act in respect of the Land, the appellants could not claim their possession to be lawful. True, the appellants could have challenged the validity of the said Sale Certificate in a substantive proceeding, but in absence of such substantive proceeding, the appellants were not precluded from setting up their defence that the said Sale Certificate was not valid or was not issued in accordance with law. The authority and the Tribunal below and the learned Single Judge misdirected themselves in not considering the defence set up by the appellants or their predecessor Bai Johra in its correct perspective. As recorded hereinabove, the Sale Certificate issued in favour of the respondents, successors of the tenant Hussain Beg was illegal. The said successors could not have based their claim on the said Sale Certificate. Mr.Hakim has appeared for the contesting respondents No.3 to 6 the successors of the aforesaid LPA/1681/2005 12/14 JUDGMENT Hussain Beg. He has relied upon the judgment of this Court in the matter of Kalidas Punjabhai Vyas Vs. Girdharbhai Parsotam Kristi [1991 (2) GLR 1078]. He has submitted that the respondent No.3 Bashir Beg died pending the proceeding before the Tribunal. His heirs were not brought on record and subsequently, his name was deleted from the cause title. In absence of the heirs of the respondent No.3, the said order has become final in respect of the heirs of the respondent No.3. In absence of the respondent No.3 or his heirs, the Revision Application pending before the Tribunal had abated as against the said heirs. He has submitted that the order made by the authority below in favour of the successors of the said Hussain Beg was comprehensive and inseverable. The Revision Application, therefore, shall abate against all the heirs. He has also relied upon the judgment of the Hon'ble Supreme Court in the case of Sau. Saraswatibai Trimbak Gaikwad Vs. Damodhar D.Motiwale and others [AIR 2002 SC 1568] to press the submission that the issuance of the Sale Certificate under Section 32M is the conclusive proof of the purchase. LPA/1681/2005 13/14 JUDGMENT We are unable to agree that the order made by the authority below made in favour of the heirs of the aforesaid Hussain Beg was comprehensive or was inseverable. If at all the Revision Application had abated against the heirs of the said Bashir Beg, it would be to the extent of the share of Bashir Beg. As we have held that the issuance of the Certificate under Section 32M of the Act was illegal, the claim based on such Certificate should necessarily fail. For the aforesaid reasons, this Appeal is allowed. The impugned judgment and order of the learned Single Judge dated 16th September, 2005 passed in Special Civil Application No.14760 of 2005 is set aside. The Special Civil Application No.14760 of 2005 is allowed. The judgment and order dated 29th October, 2005 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.A. 395 of 1992 and the order for summary eviction made by the Deputy Collector dated 9th March, 1992 in Tenancy Application No.2 of 1989 are set aside. The Tenancy Application No.2 of 1989 is rejected. Rule is made absolute. The parties will bear their own cost. LPA/1681/2005 14/14 JUDGMENT In view of the above order, the Civil Application stands disposed of. (Ms.R.M.Doshit,J) (Sharad D.Dave,J) srilatha