SCA/954520/2002 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9545 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= SOMABHAI ZINABHAI HALPATI & 1 - Petitioner(s) Versus HEIRS OF ALLARAKHI ISMAILE & 3 - Respondent(s) ========================================================= Appearance : MR PJ VYAS for Petitioner(s) : 1 - 2. (MR BJ JADEJA) for Respondent(s) : 1 - 2. MR HM JADEJA for Respondent(s) : 1 - 2. MS MANISHA LAVKUMAR, AGP for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 02/12/2008 ORAL JUDGMENT Petition is directed against the judgment and order dated 19th July 2002 passed by the Gujarat SCA/954520/2002 2/4 JUDGMENT Revenue Tribunal in Revision Application No.TEN.B.S.283/94. 2. The petitioners claim tenancy right over three survey numbers, namely, 7/1, 20 and 207/1 of village Gundlav, Taluka District Valsad of which the respondents are the land owners. Original proceedings under section 32G of the Bombay Tenancy and Agricultural Lands Act (Tenancy Act for short) were initiated wherein as per the statement of the father of the petitioners, who was alive at that time, he was declared as tenant of four survey numbers belonging to the respondents whereas on declaration that he was neither in possession nor has been cultivating the lands, the proceedings were dropped with respect to the above mentioned three survey numbers. Long after the death of their father, the petitioners initiated proceedings under section 32(1)(b) of the Tenancy Act. The Mamlatdar and ALT as well as the Deputy Collector found that section 32(1)(b) of the Tenancy Act has no application since as per the statement of the tenant himself, he was neither in possession nor cultivating the said survey numbers. These findings were confirmed by the Gujarat Revenue Tribunal in the impugned judgment in following manner. “8. I have carefully considered the arguments of both the sides and perused the case papers of the lower courts. From the papers of Mamlatdar's Court it transpires that the Mamlatdar started the inquiry under section 32G but since the tenant was absent he declared the SCA/954520/2002 3/4 JUDGMENT purchase invalid by order dated 1.2.62. But on on application of the tenant he started the inquiry under section 32G in that inquiry Jinia Kalia has given his statement on 16.7.62 in which he claimed that he is not a tenant of S.No.7/1, 20 and 207/1 and the possession is with the landlord. He has further stated that his name be deleted from the suit land as tenant. The Mamlatdar & ALT has taken further statement of the tenant in the absence of the landlord to the effect that he has given his statement without any threat or force of any body. The landlord Alarakhi has also given her statement that they are not tenant of S.Nos.7/1, 20, and 207/1 and that land is under her possession. On their statements the Mamlatdar decided by his oder dated 17.6.62 the purchase price of remaining survey numbers and further ordered that the name of the tenant on the above 3 survey numbers should be deleted. This order of the Mamlatdar & ALT is never challenged by the tenant himself during his life time, so that order of the Mamlatdar & ALT is final and is also executed because the tenant has deposited the purchase price and he was issued a certificate under section 32M. Now the heirs of the tenant Jeniabhai Kaliabhai have filed an application under section 32(1)(B). Looking to the provisions of section 32(1)(B) the name of the tenant is deleted by the order of the Mamlatdar who is competent to pass such order, so there is no case of dispossession as envisaged by section 32(1)(B). The tenant is no dispossessed by the landlord but as per the statement of the tenant he was not in possession of the suit land and as such the Mamlatdar & ALT ordered to delete his name as tenant from the suit land.” 3. There is nothing on record to suggest that the above noted factual findings recorded by three courts below are perverse. When the tenant himself had declared without any threat or coercion that he is not cultivating the above mentioned survey numbers SCA/954520/2002 4/4 JUDGMENT and when during his life time, he never sought to resile from the said statement, I see no infirmity in the orders passed by the revenue authorities. 4. The petition is therefore dismissed. Rule is discharged. Interim relief, if any, is vacated. (Akil Kureshi, J.) (vjn)