LPA/14120/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 141 of 2008 In SPECIAL CIVIL APPLICATION No. 4382 of 2000 With CIVIL APPLICATION No. 1606 of 2008 In LETTERS PATENT APPEAL No. 141 of 2008 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA ================================================= 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 ? ================================================= KANJIBHAI BHAVANBHAI DESAI - Appellant(s) Versus RAMESHBHAI CHANDUBHAI PATEL & 3 - Respondent(s) ================================================= Appearance : MR JITENDRA M PATEL for Appellant(s) : 1, None for Respondent(s) : 1, 1.2.1, 1.2.2,1.2.3 - 3. - for Respondent(s) : 4, ================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 01/08/2008 ORAL JUDGMENT (Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH) The appellant – original petitioner challenges the judgment and order dated 14.9.2007 of the learned Single Judge interpreting LPA/14120/2008 2/6 JUDGMENT the provisions of Sections 16 to 18 and 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act”). 2. The petitioner, claiming to be an agricultural labourer and claiming to be having his residential premises on the land bearing Survey No.28 of village Thaltej in Ahmedabad urban agglomeration (now a part of the local limits of Ahmedabad Municipal Corporation), claiming to be in possession of 1000 sq.mtrs. of land appurtenant to his residential premises, approached the Mamlatdar and Agricultural Lands Tribunal for declaration that he had become deemed purchaser of the land below the residential house and the land admeasuring 1000 sq.mtrs. appurtenant to his house in terms of Sections 16 to 18 of the Act. After some litigation, the Mamlatdar and ALT, by order dated 14.10.1999 declared that the petitioner is entitled to receive benefits under Section 16, 17 and 18 of the Act, that is to say, the Mamlatdar declared that the petitioner is entitled to purchase the land occupied by his residential house and the land appurtenant thereto admeasuring 1000 sq.mtrs. upon payment of Rs.25/- within a period of one year from the date of the order. It was, however, specifically provided in the order that the land so held by the petitioner will be of restricted tenure under Section 43 of the Act. 3. While the litigation between the original land owners and the present petitioner about the petitioner's entitlement to the above benefits under Section 16 to 18 is pending before the Gujarat Revenue Tribunal, the petitioner challenged that portion of the order of the Mamlatdar and ALT by which it was declared that the land held by the petitioner would be of new tenure land and would carry all the restrictions provided under Section 43 of the Act. LPA/14120/2008 3/6 JUDGMENT With the clarification that the discussion on the above controversy and the order in the petition would only be confined to the said condition and will not affect the litigation pending before the Gujarat Revenue Tribunal, the learned Single Judge rejected the petition. Hence, this appeal. 4. Section 16 of the Act provides protection against eviction to a tenant in respect of the dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord. The protection extends to the residential house as well as the land appurtenant thereto and necessary for the enjoyment of the residential house. The eviction can be sought under specified circumstances. Section 17 gives such tenant the first option of purchasing the site if the landlord intends to sell such site. Section 17A also confers right upon the tenant to purchase the site in which a dwelling house is built after following the procedure prescribed in the Section. It is Section 17B inserted by Gujarat Act No.5 of 1973 which provides that with effect from the date to be specified in the official gazette, every tenant referred to in Section 16 shall be deemed to have purchased from his landlord the site on which the dwelling house occupied by such tenant was built, and the land immediately appurtenant thereto and necessary for enjoyment of the dwelling house free from all encumbrances, at the price to be fixed by the Tribunal, being a price not exceeding twenty times the annual rent for the site. Section 18, reads as under :- “18. The provisions of sections 16, 17, 17A and 17B shall apply - (a) to the dwelling houses and sites thereof occupied by agricultural labourers and artisans in any village; and (b) ... .. ...” LPA/14120/2008 4/6 JUDGMENT 5. By order dated 14.10.1999, the Mamlatdar and ALT, Daskroi, Ahmedabad granted the benefit of the aforesaid provisions to the petitioner upon payment of Rs.25/- for the land admeasuring 1000 sq.mtrs. including the land on which the dwelling house was constructed by the petitioner or his predecessor in title. (As indicated earlier, the land is now within the limits of the Ahmedabad Municipal Corporation). The Mamlatdar & ALT also subjected the land to restrictions under Section 43. Section 43, in so far as is relevant for the purposes of this controversy, reads as under :- “43(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I, 32-O, 32U, 43-1D or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease, or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. (1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.” 6. Mr JM Patel, learned counsel for the appellant -petitioner submits that the appellant purchased the land under Section 18 and that Section 18 is not referred to in Section 43(1) and, therefore, the rights obtained by the petitioner under Section 18 read with Section 17B cannot be subjected to restrictions imposed by Section 43(1). 7. The submission cannot be accepted. The learned Single Judge has rightly held that while the provisions of Section 16, 17, 17A and 17B are applicable to tenants, Section 18 specifically provides that the provisions of the above Sections shall apply to the dwelling house and the site thereof occupied by the agricultural labourers LPA/14120/2008 5/6 JUDGMENT and artisans in any village. Hence, when Section 43(1) refers to Section 17B, the rights acquired by the petitioner under Section 17B read with Section 18 are necessarily subjected to the restrictions imposed by sub-section (1) of Section 43. 8. The object of Section 43 is to ensure that the land made available by the State to a person in occupation of the land under the provisions for compulsory purchase is to be retained by the deemed purchaser for personal use and occupation and that such person who has purchased the land at a negligible price is not to be allowed to make profit by selling off or disposing of the land or encumbering the same for a substantial consideration. The restrictions imposed by Section 43 are that the land cannot be sold without the previous sanction of the Collector and the Collector is not to grant sanction unless the occupant pays premium in accordance with the principles laid down in the general or special order of the State Government. Hence the only real and practical restriction to which the petitioner's land is subjected is that while selling off the land, the petitioner will have to pay a part of the consideration to the Government which had conferred upon the petitioner the right of compulsory purchase for a song - [Rs.25 for land admeasuring 1000 sq.mtrs.] - then within Ahmedabad Urban Agglomeration and now within the local limits of Ahmedabad Municipal Corporation. The view taken by the learned Single Judge is, therefore, unexceptionable and we are in agreement with the reasoning given as well as the conclusions arrived at by the learned Single Judge. 9. Mr Patel has submitted that Section 43 does not in terms refer to an agricultural labourer but only refers to a tenant. In our view, when Section 43 refers to Section 17B and LPA/14120/2008 6/6 JUDGMENT Section 18 makes the provisions of Section 17B applicable to agricultural labourers as well, as per the well settled doctrine of incorporation by reference, the provisions of Section 43 cover all the beneficiaries under Section 17B whether they are tenants becoming deemed purchasers under Section 17B itself or agricultural labourers becoming deemed purchasers under Section 17B read with Section 18. 10. We do not find any merit in any of the contentions urged before us. The appeal is summarily dismissed. 11. Since the appeal is dismissed, the civil application is also dismissed. (M.S. SHAH, Actg. C.J.) (D.H. WAGHELA, J.) zgs/-