SCA/3800/2002 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3800 of 2002 With SPECIAL CIVIL APPLICATION No. 4550 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ===================================================== 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 ? ===================================================== GANJI GRUH NIRMAN MANDALI - Petitioner(s) Versus PATEL KANTILAL MAGANLAL & 3 - Respondent(s) ===================================================== Appearance : Special Civil Application No.3800 of 2002 Mr.Prakash K.Jani for MR PRAVIN P PANCHAL for Petitioner MR GM AMIN for Respondent No. 1, Ms.Maithili Mehta,learned Assistant Government Pleader for Respondent Nos.2 and 3 Special Civil Application No.4550 of 2002 SCA/3800/2002 2/18 JUDGMENT Mr.G.H.Bhatt for the petitioner Mr.G.M.Amin for the respondent No.1 Ms.Maithili Mehta,learned Assistant Government Pleader for Respondent Nos.2 and 3 ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 01/12/2008 COMMON ORAL JUDGMENT 1. The petitioner of Special Civil Application No.3800 of 2002 is Ganji Gruh Nirman Mandali and respondent No.4 herein, Nilkantheshwar Mahadev Trust, is the petitioner of Special Civil Application No.4550 of 2002. Both the petitioners have challenged the orders dated 11-11-1993 made by Deputy Collector (Land Reforms) Appeal, Mehsana in Tenancy Appeal Nos.217 and 254 of 1993 (Annexure “G”) and judgment dated 18-1-2002 rendered by Gujarat Revenue Tribunal in Revision Application No.TEN.B.A.39 of 1994 (Annexure “K”). 2. The dispute pertains to land bearing Survey No.2540 admeasuring 1 Acre 29 Gunthas situated in Visnagar, which was held by one Shri Rameshwar Guru SCA/3800/2002 3/18 JUDGMENT Laxmangiriji, Pujari of Nilkantheshwar Mahadev Temple, Visnagar. Upon death of Shri Rameshwar Guru Laxmangiriji, on 10-8-1961 the land was mutated in the name of Shri Dayashankergiriji Rameshwargiriji, the successor Pujari. On 31-01-1968 the Mamlatdar and ALT, Visnagar, (hereinafter referred to as “ALT”) made an order under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (“The Tenancy Act”) holding that deceased Joitaram Bhudardas was a tenant of the land in question. 3. It is the case of the petitioner-Society that by virtue of enactment of Gujarat Devasthan Inams Abolition Act,1969 (“Inams Abolition Act”), on 10-12- 1969 the land in question stood vested in the State Government by virtue of the operation of the provisions of Inams Abolition Act. That on 14-08-1970 an order came to be made by the Devasthan Mamlatdar under the Inams Abolition Act holding that the name of the tenant was required to be deleted from the Revenue Records. 4. The petitioner-Trust of Special Civil Application No.4550 of 2002 thereupon approached the SCA/3800/2002 4/18 JUDGMENT Charity Commissioner, Gujarat State seeking permission to sell the land in question and vide order dated 14-02-1984 the Charity Commissioner granted such permission. On 22-03-1984, the Charity Commissioner published a public notice inviting objections from aggrieved persons against grant of permission to sell the land and in absence of any objection, the permission was granted. On 11-04-1984, respondent No.4-Trust executed a sale deed in respect of the land in question in favour of the petitioner- Society. 5. In 1984 the heirs of deceased Joitaram Bhudardas and deceased Maganbhai Joitaram approached the Deputy Collector in Appeal challenging the order dated 14-08-1970 made by Devasthan Mamlatdar, Visnagar. The said appeal came to be dismissed as being barred by limitation. The matter was,therefore, carried in Revision before Gujarat Revenue Tribunal (“The Tribunal”). On 16—04-1888 the Revision Application was allowed by the Tribunal and the entire matter was remanded to the Mamlatdar and ALT for a fresh decision in light of the observations SCA/3800/2002 5/18 JUDGMENT made by the Tribunal. Against the order of remand made by the Tribunal, a petition came to be preferred before this High Court, which came to be rejected on 18-10-1991. 6. On 15-07-1993 the ALT held that there was no tenant on the land in question between 19-03-1968 and 15-11-1969 and, therefore, the proceedings were required to be dropped. The heirs of the deceased tenant as well as the Trust and the Society filed Appeals before Deputy Collector. On 11-11-1993 the Appeals filed by the Trust and the petitioner Society were dismissed by the Deputy Collector, while appeals of the heirs of the deceased tenant were allowed with a direction to the ALT to fix the purchase price of the land in question. 7. The petitioner-Society and the Trust preferred Revision Application against the order of Deputy Collector, which came to be registered as Revision Application TEN.B.A.39 of 1994. The said Revision application was rejected and it is this order of Tribunal dated 18-01-2002, which is impugned in the SCA/3800/2002 6/18 JUDGMENT present petitions. 8. In the meantime it appears that on 24-02-1994, in compliance with the order made by the Deputy Collector, ALT had fixed the purchase price which came to be paid by the tenant. Upon such payment having been made, necessary certificate was also issued to the tenant with corresponding entries in the revenue records. One of the grievances ventilated on behalf of the petitioners was that despite the Tribunal having granted an order of status quo by way of interim relief vide order dated 30-03-1994, the ALT had chosen to comply with the order of the Deputy Collector and hence the exercise of fixation of purchase price, payment thereof and the consequential acts are also bad in law. This objection requires to be noted only to be rejected. As recorded herein- before, the ALT had fixed the purchase price on 24- 02-1994 when the Tribunal had not yet made any order of status quo, which came to be made only on 30-03- 1994. 9. To complete the sequence of facts, it is SCA/3800/2002 7/18 JUDGMENT necessary to note that during pendency of the Revision Application, petitioner-Society had also filed a Suit for declaration and permanent injunction sometime in June 2000. Application Exh.5 for interim injunction was granted by the Civil Court on 09-08- 2001, against which Appeal From Order came to be dismissed by the High Court on 05-09-2001. 10. On behalf of the petitioners Mr.P.K.Jani,learned advocate assailed the impugned order of Tribunal stating that the order dated 14-08-1970 made by the Devasthan Mamlatdar was in fact an order made by the ALT in exercise of powers under Section 32G of the Tenancy Act and, therefore, both the Tribunal and the Deputy Collector had erred in interfering with the said order. It was submitted that under the provisions of the Inams Abolition Act, more particularly Section 4 of the said Act, it was open to the Devasthan Mamlatdar to determine the question whether any person was Inamdar, authorised holder, unauthorised holder or inferior holder. It was,therefore, submitted that the Devasthan Mamlatdar had rightly come to the conclusion that SCA/3800/2002 8/18 JUDGMENT the heirs of the deceased tenant, who had surrendered the land to the land holders, were not required to be continued in Revenue Records and the names were correctly ordered to be deleted. 11. Alternatively, it was submitted that the appeals preferred against the said order dated 14-08-1970 having been filed only in 1984 were rightly dismissed as being time barred and on the said count also the Tribunal had committed an error in the earlier round of proceedings. That even otherwise, the subsequent order dated 15-07-1993 made by the ALT recorded that between 19-03-1968 and 15-11-1969 there was no tenant on the land in question, Thus indicating that the order dated 14-08-1970 was the correct order. 12. Alternatively, it was submitted that in fact, the order dated 14-08-1970, though styled as an order having been made by the Devasthan Mamlatdar, was in fact by the ALT and had been made in Tenancy Case No.Visnagar/32G/2/70 and, therefore, has rightly been decided by the ALT holding that in absence of any tenant as on 15—11-1969 there was no question of SCA/3800/2002 9/18 JUDGMENT selling the land to any one under Section 32G of the Tenancy Act. That the possession having been handed over by the erstwhile tenant to the landlord, direction to delete the name of the tenant from the Revenue Records was rightly made by the ALT and both the Deputy Collector and the Tribunal had erred in interfering with the said order. It was, therefore, urged that the impugned order of Tribunal as well as the order of the Deputy Collector may be quashed and set aside and the order dated 14-08-1970 be held to be the correct order in law. 13. Mr.Bhatt, learned advocate appearing for the petitioner Trust in Special Civil Application No.4550 of 2002 adopted the contentions of Shri Jani and reiterated the same. 14. Mr.Amin,learned advocate appearing for the respondent-tenants in both the petitions submitted that the impugned orders of the Tribunal and the Deputy Collector were right in law and no interference was warranted. Referring to Section 23 of the Inams Abolition Act, it was submitted that the relations of landlord and tenant were to be governed SCA/3800/2002 10/18 JUDGMENT by the provisions of Tenancy Law and the respective obligations and the rights under the Tenancy Act would prevail over the provisions of the Inams Abolition Act. Inviting attention to the following decisions of the Apex Court and this High Court it was submitted that on the tillers day, namely, 1-4- 1957 under the Tenancy Act, the interest of the landlord in the land gets extinguished and simultaneously statutorily sale takes place without any active steps by the parties. The extinguished right of the landlord stands vested in the tenant. The only right, thereafter, available to the landlord is to recover the sale price that may be fixed under Section 32G of the Tenancy Act. That the statement of the tenant that the tenant was not willing to cultivate the land for various reasons or that he would willingly hand over possession to the landlord would not estop the parties from acting in accordance with provisions of the law and ensuring that the land, which has vested in the tenant, is rightfully available to the tenant. Amrit Bhikaji v. Kashinath Janardhan, AIR 1983 SC 643. Sri Ram Ram Narain v.State of Bombay, AIR 1959 SCA/3800/2002 11/18 JUDGMENT SC 459 Navrangpura Gam Dharmada Milkat Trust v. Ramtuji Ramaji, 1993(2) GLR 1496. It was, therefore, urged that in the facts of the case, once vide order dated 31—01-1968, the ALT had recorded a finding that the contesting respondents were tenants in the land in question, there was no question of any other order being made except in accordance with the provisions of Section 32G of the Tenancy Act determining the purchase price that the tenant is required to pay and no other order could have been made by the ALT. 15. In the impugned order the Tribunal has found that in Tenancy Case No.41 of 1967, the order made by the ALT on 31-01-1968 had recorded that the land in question is the ownership of Shri Nilkantheshwar Mahadev Temple and Shri Joitaram Bhudardas is the tenant. It has further been found that the Revenue Records in the form of Panipatraks specifically establish that from 1947-48 upto 1950-51 the name of Joitaram Bhudardas appears in the column of the agriculturist. Similarly, in the column relating to SCA/3800/2002 12/18 JUDGMENT the second holder the name of Joitaram Bhudardas appears as a tenant. Village Form No.6 also records Joitaram Bhudardas as tenant. Thus, the Tribunal has found as a matter of fact that since 1942-43 upto 1960-61 the land in question was cultivated by the tenant Shri Joitaram Bhudardas as well as his father establishing that he is a tenant much before 1-4- 1957. Therefore, the said person had become a purchaser as per provisions of the Tenancy Act and the only step that was required to be taken thereafter by the ALT was to fix the purchase price as provided under the Tenancy Act. That the said exercise has been completed vide order dated 24-2- 1994. The Tribunal has further found that it was not open to the Mamlatdar either in the capacity of ALT or in the capacity of Devasthan Mamlatdar to record any other finding, contrary to the finding recorded in the order dated 31-01-1968 in light of the fact that the said order had attained finality and had not been challenged by any person at any point of time. That while passing the subsequent order it was not SCA/3800/2002 13/18 JUDGMENT open to the ALT to ignore the said order dated 31-01- 1968. The Tribunal has further found from the facts, as recorded in paragraph No.11 of the impugned order, that the so called possession taken over by the landlord appears to be an illegal possession forcibly taken over despite the order dated 31-01-1968. Referring to the orders made by the Civil Court, the Tribunal has recorded that when the dispute relates to the relationship between the landlord and the tenant, the provisions of the Tenancy Act will prevail and no order contrary to the said law could have been made by the Civil Court. In fact, the orders made under the Tenancy Act would be binding and it was not open to the Civil Court to exercise any powers in this regard. It is in the aforesaid circumstances that the Tribunal has upheld the order made by the Deputy Collector. 16. Having heard the learned advocates for the respective parties, it is apparent that there is no legal infirmity in the order made by the Tribunal, confirming the order of the Deputy Collector. Section 23 of the Inams Abolition Act, as noted herein- SCA/3800/2002 14/18 JUDGMENT before, is categorical in terms and the provisions of the Tenancy Act and the proceedings thereunder would govern the relationship of landlord and tenant. Therefore, under the Inams Abolition Act, no finding contrary to the finding recorded in the proceedings under the Tenancy Act, could have been recorded by the Devasthan Mamlatdar. Even if the said order made in August 1970 is treated as an order made under Section 32G of the Tenancy Act, it is apparent that the said order is not in consonance with the provisions of the Tenancy Act. Section 32G of the Tenancy Act stipulates under sub-section (1) publication of a notice as well as issuance of an individual notice to (a) all tenants, (b) all landlords and (c ) all other interested persons. Under sub-section (2) of Section 32G of the Act, the ALT is bound to record in the prescribed manner the statement of the tenant, whether the tenant is or is not willing to purchase the land in question, namely, the land held by him as a tenant. The said provision no where stipulates recording of anything else in the statement. Therefore, the finding in the order dated 14-08-1970 that the heirs of deceased Joitaram SCA/3800/2002 15/18 JUDGMENT Bhudardas had stated that the deceased had handed over possession five years prior to the landholder is an exercise in excess of the powers and jurisdiction vested in the ALT under Section 32G of the Tenancy Act. This is all the more so when one reads immediately preceding sentence where the heirs have categorically stated that they are willing to purchase the land in accordance with provisions of the Tenancy Act. Under Section 32G(4) of the Tenancy Act, it is provided that if a tenant is willing to purchase, the ALT is bound to grant an opportunity of hearing to the tenant and landlord and all other interested persons and after holding an inquiry, determine the purchase price of the land as provided. Therefore, on a plain reading, it becomes abundantly clear that the only power which is available under sub-section(4) of Section 32G of he Tenancy Act is to determine the purchase price once the tenant has declared his willingness to purchase the land. The language employed by the Statute does not permit any other order to be made by the ALT. In the facts of the present case,neither sub-section(3) nor the proviso under sub-section(4) nor sub-sections (5) and SCA/3800/2002 16/18 JUDGMENT (6) of Section 32G of the Tenancy Act are applicable and hence it is not necessary to consider the same. 17. In light of the aforesaid Legislative Scheme, the facts may be examined. In the subsequent order dated 14-08-1970 statement of heir of deceased Joitaram Bhudardas, namely, tenant Maganbhai Joitaram is recorded that his father had expired about one and half years back and the land in question has been handed over to Nilkantheshwar Mahadev Temple about five to six years back by the deceased Joitaram Bhudardas voluntarily. Against that in the earlier order dated 31-01-1968, the ALT has recorded that deceased Joitaram Bhudardas is personally present and on 07-02-1967 his statement has been recorded wherein it is stated that the land was originally cultivated by his deceased father Bhudarbhai Jabrabhai and after death of Bhudarbhai Jabrabhai, the land is being cultivated by Shri Joitaram Bhudardas. Therefore, the statement in the subsequent order dated 14-08-1970 that the land in question had been handed over about five to six years back by Joitaram Bhudardas to the landlord is factually inconsistent with the earlier SCA/3800/2002 17/18 JUDGMENT finding, wherein it is stated that Shri Joitaram Bhudardas has been cultivating the land since 1952- 53. If the land had been parted with by deceased Joitaram Bhudardas five to six years back from 14-08- 1970, then in February 1967 the ALT would not have recorded that the said person was cultivating the land himself. Hence on facts also the subsequent order dated 14-08-1970 does not appear to be recording the correct position. In law,as recorded herein-before, once the tenant had been established to be a deemed purchaser,no other finding contrary thereto could have been recorded in any order to be made under Section 32G of the Tenancy Act. The Deputy Collector and the Tribunal have, therefore, rightly not accepted the said order dated 14-08-1970 to be recording correct facts and rightly held that the said order as well as the subsequent order made in 1973 are bad in law. 18. Therefore, in light of the established position in law, on a plain reading of the provisions of the Tenancy Act and the Inams Abolition Act, the impugned order made by Tribunal, confirming the order made by SCA/3800/2002 18/18 JUDGMENT Deputy Collector, does not warrant interference. The petitioners have not been able to point out any factual or legal infirmity in the orders made by the Tribunal and the Deputy Collector. 19. Accordingly, both the petitions are rejected. Rule discharged. The interim relief operating in the form of status quo shall stand vacated forthwith. There shall be no order as to costs. arg (D.A.Mehta,J)