SCA/2805/1991 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2805 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ================================================= 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 ? ================================================= DEVSTHAN VITHAL MANDIR TRUST - Petitioner(s) Versus MINAKSHIBEN WD/O RASIKLAL JAISWAL & 6 - Respondent(s) ================================================= Appearance : MR NAVIN PAHWA for Petitioner(s) : 1, MR MIHIR THAKORE ON behalf OF MTM HAKIM for Respondent(s) : 1 - 2,4 - 7. NOTICE SERVED for Respondent(s) : 3, ================================================= SCA/2805/1991 2/23 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 20/04/2006 ORAL JUDGMENT . 1 By way of this petition under Article 227 of the , - Constitution of India the petitioner Trust original landlord has challenged the legality and validity of the judgment and order passed by the the Gujarat . / / Revenue Tribunal dtd 25 1 1990 in Revision Application . / / No TEN BA 384 of 1986 in dismissing the Revision Application and confirming the order passed by the ( ), the Deputy Collector Tenancy Appeals Vadodara . / / . dtd 23 10 1985 in Tenancy Appeal No 19 of 1979 as well as the order passed by the the Mamlatdar and , . / / . ALT Vadodara dtd 6 7 1979 in Tenancy Case No 3467 - of 1977 declaring Rasiklal Tilakram Jaiswal respondent herein as tenant of the land bearing . Survey No 707 admeasuring 20 Acres and 26 Gunths , . ( ) of land situated at Vadodara under sec 32 O of the , Bombay Tenancy and Agricultural Lands Act 1948 ( “ ” ). hereinafter referred to as the Act for short . 2 Few facts are necessary for the purpose of SCA/2805/1991 3/23 JUDGMENT determination of the present petition as narrated in . the memo of the petition . 3 – The petitioner Devasthan Vithal Mandir Trust ( “ ”) hereinafter referred to as the landlord is the owner . - of the land bering Survey No 707 ad measuring 20 , . Acres and 26 Gunthas of land situated at Vadodara The said land is situated within the limits of former . . . / / Baroda Municipal Borough constituted w e f 1 4 1967 . as the Municipal Borough of the City of Baroda . ( )( ) , . Under sec 88 1 C of the Act nothing in secs 1 to 87 - of the Act shall apply inter alia to any area within the limits of Municipal Borough constituted under the , . Bombay Municipal Boroughs Act 1925 Under / . / / , unregistered Kabulatnama Agreement dtd 2 6 1956 , one Surajram Kashiram Jaiswal uncle of Rasiklal Tilakram Jaiswal took the land on lease for three . . years on condition of payment of rent of Rs 2022 00 . per annum . 4 . . . / / The Tenancy Act was amended w e f 1 8 1956 by . . . ( ) Bombay Act No 13 of 1956 Sec 43 C came to be inserted in the Tenancy Act by the said Bombay Act . . No 13 of 1956 and it provided that nothing in sec 32 ( ) . to 32R both inclusive and sec 43 shall apply to SCA/2805/1991 4/23 JUDGMENT - lands in the areas within the limits of inter alia Municipal Borough constituted under the Bombay , . Municipal Boroughs Act 1925 Under the said . , . Amending Act NO 13 of 1956 a new Sec 88 was . . substituted for the original sec 88 The new Section , , 88 in so far as is relevant provided that nothing in . - Sec 1 to 87 of the Tenancy Act shall apply inter alia to any area which the State Government may from , , time to time by notification in the Official Gazette - specify as being reserved for non agricultural or . industrial development According to the petitioner / . . on ¼ 1957 i e the Tiller's Day the Tenancy Act did . not apply to the land in question The Government of . / / ( - Bombay issued Notification dtd 21 5 1958 Annexure B ) to the petition specifying the areas within the limits of Municipal Borough of Baroda as being reserved - . for Non Agricultural and Industrial development . 5 – The petitioner trust landlord instituted suit being . Regular Civil Suit NO 143 of 1959 in the Court of learned 3rd ( ), Joint Civil Judge SD Vadodara against Surajram Kashiram Jaiswal for the recovery of arrears . . . of rent of Rs 3479 69 ps The said Surajram contested the suit on the ground that his rights in respect of the suit land which had accrued before the issuance SCA/2805/1991 5/23 JUDGMENT . / / of the Bombay Government Notification dtd 21 5 1958 , was issued substituted and were not affected by the , said notification that the Mamlatdar had determined the fair rent in accordance with the provisions of sections 8 and 9 of the Tenancy Act and the Civil . Court had no jurisdiction The trial court dismissed the suit on the ground that since the Mamlatdar had , already determined the reasonable rent the Civil Court was not competent to determine the same . , again Against the said judgment and decree an appeal was preferred before the learned District , , Judge Baroda who dismissed the said appeal against which a Second Appeal being Second Appeal . No 313 of 1963 was preferred before this Court and this Court held that in view of the notification . / / , dtd 21 5 1958 the provisions of Tenancy Act will not apply retrospectively and remanded the matter to the . trial court for determination of reasonable rent The trial court determined the reasonable rent at . . . Rs 2225 00 per annum The said decision was challenged before this Court and this Court allowed . / / the said appeal by judgment and order dtd 4 10 1971 quashing and setting aside the judgment and decree passed by the courts below and decreed the suit for SCA/2805/1991 6/23 JUDGMENT . . . a sum of Rs 3479 69 ps The said Surajmal challenged the said order passed by this Court before the Hon'ble Supreme Court and the Hon'ble Supreme Court by judgment which is reported in AIR 1966 SC : ( ) 2204 XXVIII 2 GLR 791 dismissed the appeal . confirming the order passed by this Court . 6 The petitioner Trust filed a suit being Regular Civil . Suit NO 387 of 1962 for the possession of the land in question against Surajmal Kashiram and Rasiklal . Tilakram and the said suit seems to be pending . 7 . . . After the formation of the State of Gujarat w e f / / - , , 1 5 1960 under the Bombay Re organisation Act 1960 the Government of Gujarat issued notification . / / dtd 17 10 1964 rescinding Bombay Government's . / / - Notification dtd 21 5 1958 and specifying inter alia the areas within the limits of Municipal Borough of / / Baroda as it existed on 21 5 1958 as being reserved - . , for Non agricultural and Industrial development Thus the land continued to remained exempted from the . . . application of sec 1 to 87 of the Act The Govt of . / / Gujarat vide notification dtd 23 8 1976 rescinded its . / / , earlier notification dtd 17 10 1964 meaning thereby the provisions of Tenancy Act are made applicable to the lands situated within the limits of Municipal SCA/2805/1991 7/23 JUDGMENT . Borough of Baroda . 8 That Rasiklal Tilakram Jaiswal filed Tenancy Case . / / . ( ) No 3467 of 1977 on 20 9 1977 under sec 32 O of the Act for fixing purchase price of the land bearing . Survey No 707 admeasuring 20 Acres and 26 , ( ) Gunthas situated at Vadodara Kasaba contending - inter alia that he has become deemed purchaser of the land in question and that the land belongs to ; trust that the said land was taken for cultivation in . . 1956 by Surajram Kashiram i e his uncle for ; cultivation in auction that Surajmal being elder , member in the family his name was given in the , , auction however cultivation was made by the applicants alone and the said Surajmal had never - , cultivated the land at any time after 1956 57 though - his name was entered in Pani Patrak along with the . name of Rasiklal Tilakram Jaiswal The name of Surajmal Kashiram was deleted vide Mutation Entry . - No 5837 in the year 1967 68 and since then his name alone was in Pani Patrak in the column of tenant and he is in actual possession of the suit land . , and that he has spent an amount of Rs 25 000 to . , Rs 30 000 for improving the said land and is . cultivating fruit trees and different crops SCA/2805/1991 8/23 JUDGMENT . 9 , That on appreciation of the evidence the Mamlatdar , and ALT Vadodara held the said Rasiklal Tilakram Jaiswal as tenant and held that he is a deemed purchaser of the said land in question and fixed . , . purchased price of Rs 21 225 75 with running interest . / %. of 4 1 2 Being aggrieved by and dissatisfied with , the order passed by the Mamlatdar and ALT . / / . Vadodara dtd 6 7 1979 in Tenancy Case No 3467 of , – 1977 the petitioner trust original landlord preferred ( an appeal before the the Deputy Collector Tenancy ), . Appeals Vadodara being Appeal No 19 of 1979 and ( ) the the Deputy Collector Tenancy Appeal by its . / / order dtd 23 10 1985 dismissed the said appeal confirming the order passed by the Mamlatdar and , . / / . ALT Vadodara dtd 6 7 1979 in Tenancy Case NO 3467 . of 1977 Being aggrieved by and dissatisfied with the ( order passed by the the Deputy Collector Tenancy ), . / / Appeals Vadodara dtd 23 10 1985 in Tenancy Appeal . No 19 of 1979 in dismissing the same and confirming , the order passed by the the Mamlatdar and ALT . / / . Vadodara dtd 6 7 1979 in Tenancy Case NO 3467 of - 1977 in declaring the Rasiklal Tilakram Jaiswal , respondent herein as tenant and deemed purchaser . ( ) of the land in question under sec 32 O of the Act SCA/2805/1991 9/23 JUDGMENT , – and fixing the purchase price the petitioner trust original landlord preferred a revision application being . / / Revision Application No TEN BA 384 of 1986 before the the Gujarat Revenue Tribunal and the the Gujarat Revenue Tribunal by its impugned judgment and . / / order dtd 25 1 1990 dismissed the said revision application confirming the order passed by both the – authorities below declaring Rasiklal Tilakram Jaiswal respondent herein as tenant of the land in question / . ( ) and deemed purchaser u sec 32 O of the Act and . fixing purchase price of the land in question Being aggrieved by and dissatisfied with the order passed . / / by the the Gujarat Revenue Tribunal dtd 15 1 1990 in . / / , Revision Application No TEN BA 384 of 1986 the – petitioner trust original landlord has preferred the present petition under Article 227 of the Constitution . of India . 10 . , Mr Navin Pahwa learned advocate appearing on – behalf of the petitioner trust original landlord has vehemently submitted that the the Gujarat Revenue Tribunal as well as both the authorities below have materially erred in declaring Rasiklal Tilakram Jaiswal – . respondent herein as tenant of the suit land He has also further submitted that all the authorities SCA/2805/1991 10/23 JUDGMENT below have materially erred in holding that Rasiklal Tilakram Jaiswal was cultivating the land as tenant . and that has resulted into miscarriage of justice He has also further submitted that as held by the Hon'ble Supreme Court in the judgment rendered in the appeal preferred by Surajram Kashiram Jaiswal , which is reported in AIR 1986 SC 2204 the provisions of Bombay Tenancy Act will not be applicable to the , land in question all the authorities below have materially erred in declaring Rasiklal Tilakram Jaiswal as tenant and the same is contrary to the judgment of the Hon'ble Supreme Court with respect to the . land in question He has also further submitted that - - , as on 1 4 1957 the Tenancy Act was not applicable and even thereafter in view of the Notification . / / , dtd 21 5 1958 the provisions of Bombay Tenancy Act , were not made applicable as the lands situated within the limits of municipal Borough of Baroda were - reserved for Non Agricultural and Industrial . ( ) development and exemption granted under sec 88 1 ( ) B of the Act came to be continued by further . / / Notification of the State Government dtd 17 10 1964 . / / and the said Notification dtd 17 10 1964 came to be . / / rescinded vide Notification dtd 23 8 1976 and SCA/2805/1991 11/23 JUDGMENT , therefore the provisions of the Bombay Tenancy Act would not have been made applicable retrospectively , and therefore it is submitted that all the authorities below have materially erred in declaring Rasiklal - Tilakram Jaiswal respondent herein as tenant under . ( ) . sec 32 O of the Act He has also further submitted that the land in question was never cultivated by , Rasiklal Tilakram Jaiswal as tenant and therefore the said Rasiklal Tilakram Jaiswal could not have been / declared as tenant deemed purchaser of the land in , question and therefore it is requested to allow the present petition by quashing and setting aside the order passed by all the authorities below declaring Rasiklal Tilakram Jaiswal as tenant and deemed . ( ) purchaser under sec 32 O of the Act with respect to . the land in question . 11 , . , Per contra Mr Mihir Thakor learned Senior Advocate appearing on behalf of the respondent tenant while opposing the present petition and supporting the orders passed by all the authorities below has . ( ) submitted that considering the provisions of sec 32 O , – of the Act Rasiklal Tilakram Jaiswal respondent is . rightly declared as deemed purchaser He has also further submitted that when the Hon'ble Supreme SCA/2805/1991 12/23 JUDGMENT Court decided the appeal preferred by the heirs of , . / / Surajram Notification dtd 21 5 1958 was pressed into . , service However subsequent notification . / / dtd 23 8 1976 by which the earlier notification issued . ( )( ) . / / under sec 88 1 B of the Act dtd 17 10 1964 came to , be rescinded was not brought to the notice of the / Hon'ble Supreme Court and or the same was not , pressed into service and therefore the Hon'ble Supreme Court had no occasion to consider the effect . / / of Notification dtd 17 10 1964 reserving the areas within the limits of Municipal Borough of Baroda as - being reserved for Non agricultural and Industrial development and subsequent notification . / / dtd 23 8 1976 rescinding the earlier Notification . / / , dtd 17 10 1964 and therefore it is submitted that in . / / view of the the notification dtd 17 10 1964 which further came to be rescinded by notification . / / , dtd 23 8 1976 the decision of the Hon'ble Supreme Court reported in AIR 1986 SC 2204 will not come in . the way of the respondent tenant He has also further , submitted that before the Hon'ble Supreme Court the question with regard to subsequent notification was not there and therefore effect of rescinding . / / , notification dtd 17 10 1964 by subsequent Notification SCA/2805/1991 13/23 JUDGMENT . / / dtd 23 8 1976 was not before the Hon'ble Supreme . Court He has also further submitted that even / keeping aside the dispute controversy with regard to retrospective operation of the Bombay Tenancy , . / / Act on issuance of the notification dtd 23 8 1976 . / / rescinding earlier notification dtd 17 10 1964 and making provisions of the Bombay Tenancy Act applicable and whether the same cam be done , retrospectively or not in view of the provisions of . ( ) , sec 32 O of the Bombay Tenancy Act as admittedly Rasiklal Tilakram Jaiswal was cultivating the land in , question after Tiller's Day the said Rasiklal Tilakram Jaiswal was required to be declared as deemed , purchaser and therefore it is submitted that all the authorities below have rightly declared Rasiklal – / Tilakram Jaiswal respondent herein as tenant deemed purchaser of the land in question and , therefore it is submitted that in view of the . ( ) , provisions of sec 32 O of the Act the controversy with regard to retrospective applicability of Bombay Tenancy Act on the Notification being issued . / / dtd 23 8 1976 is not required to be considered as the same would be exercising in futility as even . ( ) , otherwise on plain reading of sec 32 O of the Act SCA/2805/1991 14/23 JUDGMENT – Rasiklal Tilakram Jaiswal respondent herein is to be . succeeded . 12 So far as the contention on behalf of the petitioner that all the authorities have materially erred in – holding that Rasiklal Tilakram Jaiswal respondent , herein was cultivating the land in question as tenant . , Mr Mihir Thakor learned senior advocate has submitted that even before the learned Civil Judge ( ), . SD Vadodara in Regular Civil Suit No 217 of 1994 , more particularly in para 3 of the plaint it is specific case of the petitioner that the deceased Rasiklal – Tilakram Jaiswal respondent herein was tenant and was cultivating the land in question as tenant and , therefore in view of the specific contention and , admission on the part of the petitioner it is not open for the petitioner now to contend that the said – deceased Rasiklal Tilakram Jaiswal respondent herein was not cultivating the land in question as . tenant . 13 He has also further submitted that even otherwise , also there are concurrent finding of facts by all the – authorities below that Rasiklal Tilakram Jaiswal respondent herein was cultivating the land as tenant and even on considering the deletion of name of SCA/2805/1991 15/23 JUDGMENT . Surajram Kashiram vide Mutation Entry No 3857 and – continuing the name of Rasiklal Tilakram Jaiswal - respondent herein in the Pani Patrak in the column of . , tenant Submitting accordingly it is requested to . dismiss the present petition with costs . 14 Heard the learned advocates appearing on behalf of . the parties It is not in dispute that the land in question was situated within the limits of former , . Municipal Borough Baroda A notification came to be / / issued by Government of Bombay on 21 5 1958 - .( )( ) . . under sub sec 1 B of sec 88 of the Act No 13 of 1956 declaring that the lands within the limits of City - of Baroda were reserved for Non agricultural and , Industrial Development and therefore the provisions of Tenancy Act were not applicable to the land in , question as the same was situated within the . , Municipal limits of city of Baroda Subsequently on formation of the State of Gujarat under the Bombay - , , Re organization Act 1960 Government of Gujarat . / / issued notification dtd 17 10 1964 rescinding Bombay . / / Government's Notification dtd 21 5 1958 and - specifying inter alia the areas within the limits of Municipal Borough of Baroda as it existed on / / - 21 5 1958 as being reserved for Non agricultural and SCA/2805/1991 16/23 JUDGMENT . , Industrial development Thus the land in question continued to remain exempted from application of . . , sec 1 to 87 of the Act However the said notification . / / dtd 17 10 1964 came to be rescinded by notification . / / , dtd 23 8 1976 meaning thereby the provisions of Bombay Tenancy Act came to be made applicable , and therefore it is the contention on behalf of the . / / , petitioner that as by Notification dtd 23 8 1976 . / / Notification dtd 17 10 1964 came to be rescinded and the provisions of the Tenancy Act came to be made . . . / / , – applicable w e f 23 8 1976 Rasiklal Tilakram Jaiswal respondent herein could not have been declared as , tenant by retrospectively applying the provisions of Bombay Tenancy Act and that too more particularly when there is specific finding given by the Hon'ble Supreme Court declaring and holding that the provisions of the Bombay Tenancy Act were not . applicable with respect to the land in question It is the contention on behalf of he petitioner that in view of the decision of the Hon'ble Supreme Court , reported in AIR 1986 SC 2204 specifically holding , that with respect to the land in question the , provisions of Bombay Tenancy Act are not applicable all the authorities have materially erred in declaring SCA/2805/1991 17/23 JUDGMENT - Rasiklal Tilakram Jaiswal respondent herein as / . , , tenant deemed purchaser Therefore firstly it is required to be consider whether the decision of the Hon'ble Supreme Court with respect to the very land in question will come in way of Rasiklal Tilakram - Jaiswal respondent herein in declaring him as / . ( ) tenant deemed purchaser under sec 32 O of the Act . or not On going through the decision of the Hon'ble , Supreme Court it appears that the Notification . / / dtd 21 5 1958 issued by the Bombay Government was pressed into service and neither the subsequent . / / notification dtd 17 10 1964 nor Notification . / / . / / dtd 23 8 1976 by which the notification dtd 17 10 1964 came to be rescinded and the provisions of Bombay , Tenancy Act were made applicable was brought to / the notice of the Hon'ble Supreme Court and or were . , not pressed in service Therefore the effect of . / / / / Notification dtd 17 10 1964 and 23 8 1976 were not under the consideration by the Hon'ble Supreme Court in the aforesaid reported decision and , therefore the said decision will not come in the way - . of Rasiklal Tilakram Jaiswal respondent herein The decision of the Hon'ble Supreme Court and the ratio is required to be considered in light of the SCA/2805/1991 18/23