SCA/9024/2000 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9024 of 2000 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 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 ? ========================================= BHANUBHAI UKEDIABHAI Versus STATE OF GUJARAT AND OTHERS ========================================= Appearance : MRS SANGITA PAHWA for M/S THAKKAR ASSOC. for the Petitioner GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR UA TRIVEDI for Respondent No. 3 ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 06/08/2007 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 10th June, 1999 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN.BA-325/98, whereby the revision application filed by the petitioner under section 76 of the SCA/9024/2000 2/30 JUDGMENT Bombay Tenancy and Agricultural Lands Act, 1948 (the Tenancy Act) has been dismissed and the order dated 2nd July, 1998 passed by the Deputy Collector, Chhotaudepur in Tenancy Appeal No.3 of 1998 has been upheld. 2. The facts of the case stated briefly are that the petitioner Bhanubhai Ukediabhai and his two brothers had submitted an application to the Mamlatdar and ALT, Baroda on 6th December, 1996 under sections 70(b), 32PPP and 32G of the Tenancy Act stating that the land bearing survey No.136 of village Palia, Tal: Jetpur-Pavi, Dist: Vadodara (hereinafter referred to as the “disputed land”) admeasuring acres 4 and 20 gunthas held by the respondent No.3 herein was cultivated by Ukediyabhai Daliyabhai the deceased father of the petitioner as a tenant. That the said Ukediyabhai Daliyabhai was a protected tenant as per the entries No.33 and 166 made in the record of rights. It was the case of the petitioner and his two brothers that the subject land was being sold to other persons and therefore, they had a first right to purchase the disputed land as tenants. It was, therefore, prayed that the price of the disputed land be fixed and the same be sold to the petitioner. 3. Pursuant to the said application, the Mamlatdar and ALT, Baroda in exercise of powers under section 70(b) of the Tenancy Act after holding inquiry, passed an order dated 26th December, 1997, whereby it was held that as per the revenue record, the petitioner appears to be a tenant in respect of the subject land as on 15.6.1955 and accordingly fixed the purchase price of the subject land at Rs.1643.20 inclusive of interest, etc. SCA/9024/2000 3/30 JUDGMENT 4. Being aggrieved by the aforesaid order, the respondent No.3 herein preferred an appeal under section 74 of the Tenancy Act through a power of attorney before the Deputy Collector, Chhotaudepur, who by an order dated 2nd July, 1998 allowed the appeal by quashing and setting aside the order dated 26th December, 1997 passed by the Mamlatdar and ALT. Being aggrieved, the petitioner made a revision application before the Gujarat Revenue Tribunal under the provisions of section 76 of the Tenancy Act, which came to be dismissed by the impugned order dated 10th June, 1999. Being aggrieved, the petitioner has moved the present petition challenging the aforesaid order passed by the Gujarat Revenue Tribunal. 5. Heard Mrs. Sangita Pahwa, learned advocate for M/s Thakkar Associates, learned advocate for the petitioner, Mr. A.J. Desai, learned Assistant Government Pleader for respondents No.1 and 2 and Mr. U.A. Trivedi, learned advocate for the respondent No.3. 6. Mrs. Pahwa learned Advocate for the petitioner vehemently assailed the impugned orders. It was submitted that both the authorities had failed to appreciate the case of the petitioner in its proper perspective. Drawing attention to the findings recorded by the Mamlatdar and ALT it was pointed out that Ukedia Daliya, the father of the petitioner who was the original tenant had been shown to be a protected tenant qua the disputed land by way of mutation entry No.33 dated 30.8.52 as well as mutation entry No.134. It was submitted that a tenant would cease to be a protected tenant only in accordance with the provisions of the Tenancy Act. SCA/9024/2000 4/30 JUDGMENT There is nothing on record to show that any procedure as envisaged under the provisions of the Tenancy Act had been followed prior to deleting the name of the petitioner’s father as tenant. Referring to the provisions of sections 15 and 32(IB) of the Tenancy Act, it was submitted that prior to deleting the name of the original tenant the procedure laid down under the said provisions had not been followed. It was contended that for the purpose of section 32(IB) of the Tenancy Act, the relevant date is 15th June, 1955, whereas in the present case name of the original tenant had been deleted on 2nd November, 1955, hence the provisions of the said section would squarely apply to the facts of the present case. It was also submitted that the said contention is fortified by the finding of the Mamlatdar and ALT that the original tenant was in possession of the disputed land on 15th June, 1955. It was submitted that in the circumstances, the Mamlatdar and ALT had noted that the name of Ukedia Daliya as tenant had been deleted vide mutation entry No.166 dated 2.11.1955, merely on the basis of a consent statement, without there being any proceeding under section 32(1)(b) of the Tenancy Act and had, accordingly, rightly held that mutation entry No.33 could not have been deleted without any order having been passed by a Court of competent jurisdiction. It was emphatically argued that neither the appellate nor the revisional authority have dealt with the aforesaid findings of the Mamlatdar and ALT. It was contended that the Mamlatdar and ALT had rightly found that in view of the instructions issued by the Government through various Government Resolutions and Circulars, a decision as regards tenancy is required to be taken after full investigation, to ensure that the rights of tenants are not snatched away. In support of her submissions the learned SCA/9024/2000 5/30 JUDGMENT Advocate for the petitioner placed reliance upon the decision of the Supreme Court in the case of Abdul Ajij Shaikh Jumma and another v. Dashrath Indas Nhavi and others, AIR 1987 Supreme Court 1626, as well as in the case of Babu Paras u Kaikadi (Dead) by Lrs. V. Babu (Dead) through Lrs., (2004) 1 SCC 681. 7. It was next submitted that in the rights column in the village form No.7/12 in respect of the disputed land, for the period 1949-50 to 1954-55, the entry is to the effect “through servants” and cultivation is shown to be by way of “Mode II”, hence, evidently the landlord was not cultivating the land personally. It was urged that in view of the finding of fact recorded by the Mamlatdar and ALT that the original tenant was in possession of the disputed land on 15th June, 1955 the heirs of Ukedia Daliya the original tenant were entitled to purchase the disputed land, hence the Mamlatdar and ALT was fully justified in fixing the purchase price of the disputed land. 8. On the question of delay in making the application, it was submitted that when the petitioner and his brothers came to know that the disputed land was being sold to a third party, they had immediately made the application. It was contended that limitation would start from the date of knowledge; accordingly there is no delay in making the application. It was further submitted that in view of the law laid down by this Court in the case of Bhaikhan Umravkhan Pathan v. Ismail Gafurbhai Vora and others, 1989 (1) GLH 358 and Maneksha Beramsha v. Mochibhai Puniyabhai Khodo, 1994 (1) GLH 400 there is no time limit to the exercise of suo SCA/9024/2000 6/30 JUDGMENT motu powers by the Mamlatdar under section, and once the Mamlatdar is convinced about the justness of the grievance put forward by the tenant, if he proceeds to deal with the case under section 32(1B), there is an inference that he is exercising suo motu powers. Hence, there is no delay in filing the application. In conclusion, it was submitted that both, the Deputy Collector as well as the Tribunal had not taken into account the relevant evidence led by the petitioner and the impugned orders being contrary to the statutory provisions, deserve to be quashed and set aside. 9. On the other hand, Mr. Umesh Trivedi learned Advocate for the respondent No.3 landlady, vehemently opposed the petition. Drawing the attention of the Court to the fact that the application for fixation of purchase price was made under the provisions of sections 70(b), 32PPP and 32 G of the Tenancy Act, it was submitted that in the facts and circumstances of the present case none of the said provisions are applicable. It was submitted that as is evident on a perusal of the record of rights pertaining to the disputed land, the original tenant had voluntarily given up possession of the disputed land much prior to tillers’ day. The name of the original tenant stood deleted vide mutation entry No.166 dated 2nd November, 1955 on his consent statement that he had given up possession seven years prior thereto. The said mutation entry has become final and has never been challenged. It was contended that for the purpose of invoking the provisions of Section 32 G of the Tenancy Act, the tenant should be in possession of the land on tillers’day i.e. 15th June, 1955. The record bears out that fact that on the said date the original tenant was not in possession of the disputed land, SCA/9024/2000 7/30 JUDGMENT hence, section 32 would not be applicable on the facts of the present case. 10. It was next submitted that insofar as the provisions of section 32PPP of the Tenancy Act are concerned, the same envisage a situation where land is at the disposal of the Collector under section 32P on account of the purchase of land by the tenant thereof having become ineffective. However, insofar as the present case is concerned, on facts, that is not the position, hence, the provisions of the said section have been wrongly invoked. 11. It was further pointed out that section 32(1B) of the Tenancy Act was inserted in the statute book with effect from 3.3.1973. To invoke the provisions of section 32(1B), the tenant must be in possession on the appointed day and must have been dispossessed by the landlord at any time before the specified date. “Appointed day” is defined under section 2(2B) of the Tenancy Act to mean the 15th day of June, 1955 and “specified date” means the date of coming into force of the Bombay Tenancy and Agricultural Lands Rules (Gujarat Amendment) Act, 1972, i.e., 3rd March, 1973. It was contended that in the facts of the present case, the original tenant was neither in possession of the disputed land on the appointed day or at any time thereafter, nor was he dispossessed prior to the specified date. Hence, the provisions of section 32(1B) of the Tenancy Act would have no applicability to the facts of the present case. Referring to the provisions of Rule 15 of the Bombay Tenancy and Agricultural Lands Rules, 1956, it is pointed out that an application under sub-section (1B) of section 32 by a tenant specified in that sub-section is required SCA/9024/2000 8/30 JUDGMENT to be made within a period of one year from the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972. No such application was made within the prescribed time, although the original tenant was alive till 1991, which goes to show that the surrender was voluntary in nature, as was permissible under the Tenancy Act and the Rules prevalent at the relevant time and therefore, the original tenant had rightly not challenged those proceedings. 12. Referring to the order of the Mamlatdar and ALT, it was submitted that contrary findings have been recorded in paragraph No.6 and 10 thereof as regards the possession of the petitioner and as such the same has rightly been set aside by the Tribunal. Referring to paragraph 6 of the order of the Mamlatdar, it was pointed out that there is no evidence as to who were the servants through whom the disputed land was being cultivated. It was submitted that if the tenant was a servant, his name would have been reflected in the revenue record village form No.7/12. It was urged that in the circumstances, the finding recorded by the Mamlatdar that the tenant was in possession has rightly been set aside by the Tribunal by giving cogent reasons based on the documents on record and therefore, in a petition under Article 227 of the Constitution, the said finding cannot be interfered with. 13. The next contention advanced by the learned advocate for the respondent No.3 was that the application made by the petitioner was barred by delay and laches and ought not to have been entertained by the Mamlatdar and ALT. Drawing attention to the factual aspects of the case, it was submitted SCA/9024/2000 9/30 JUDGMENT that the name of the original tenant was deleted on 2nd November, 1955; the original tenant died some time in 1991- 92; during his lifetime, the original tenant never challenged the deletion of his name from the record of rights nor did he or his son claim any tenancy rights over the disputed land. It was submitted that section 15 of the Tenancy Act came into force in the year 1973, however, even thereafter neither the original tenant nor the petitioner have thought it fit to resort to the said provision. Referring to the provisions of section 29 of the Tenancy Act, it was pointed out that in case any tenant was entitled to possession of any land or dwelling house under the provisions of the Tenancy Act, he was required to apply in writing for such possession to the Mamlatdar, and such application was required to be made within a period of two years from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant. It was submitted that the original tenant had not made any such application within the period of limitation prescribed under section 29(1) of the Tenancy Act or even thereafter. Attention was also drawn to the provisions of sub-section (2) of section 29, which provides that save as otherwise provided in sub-section (3A), no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. It was pointed out that the aforesaid amendment came into force in the year 1965; however, even thereafter no proceedings had been initiated either by the original tenant or his son. 14. It was emphatically argued that various beneficial provisions were inserted in the Tenancy Act from time to time, however, even after the coming into force of such benevolent SCA/9024/2000 10/30 JUDGMENT provisions, the tenant has not thought it fit to resort to the said provisions. Hence, the heirs are now estopped from questioning the earlier proceedings and entries. It was contended that the heirs of the original tenant could have inherited the tenancy under the provisions of the Tenancy Act, provided there was an existing tenancy. When there was no existing tenancy at the time of the death of the original tenant, there was nothing for the heirs to inherit and the proceedings being hopeless time barred should not be entertained in exercise of powers under Article 227 of the Constitution of India. 15. Referring to the decisions of the Apex Court in the case of Abdul Ajij Shaikh Jumma and another v. Dashrath Indas Nhavi (supra) cited by the learned advocate for the petitioner, it was submitted that the said decision is of no help to the petitioner, as in the facts and circumstances of that case, certain facts were not disputed and the procedure was in accordance with law. In the facts of the said case, suo motu proceedings have been initiated by the Tehsildar, whereas the present case is not one where the suo motu proceedings have been initiated. It was submitted that even if the application is considered to be one under section 32(1B), the petitioner is not entitled to the relief claimed for in the petition. It was accordingly urged that the petition, being devoid of any merit or substance deserves to be dismissed. 16. This Court has considered the submissions advanced by the learned advocates for the parties and has perused the record of the case as well as the decisions cited at the bar. SCA/9024/2000 11/30 JUDGMENT 17. Before examining the merits of the case it may be pertinent to refer to the findings recorded by the authorities below. 18. The Mamlatdar and ALT has while allowing the petitioner’s application, recorded the following findings: (i) Earlier the original land owner was one Bai Chandanben Naran widow of Gordhandas Himmatlal. She expired on 20.3.51. As she did not have any children, her nephew Govindlal held the disputed lands by way of gift in respect of which entry is made in the record of rights by way of mutation entry No.1/30 and 26 at page No.128. (ii) There is a mutation entry in respect of the disputed land in respect of tenant being Mutation Entry No.33 dated 30.8.52 wherein the name ‘Ukedia Daliya’ is entered. The name appears to have been entered in accordance with law on the basis of an order of the Taluka office. (iii) Thereafter again vide mutation entry No.134 there is an entry of Ukedia Daliya as tenant. (iv) There is a mutation entry No.166 in connection with the disputed land made on 2.11.55. A perusal of the said entry shows that based upon a reply given by Ukedia Daliya that he had given up the possession of the disputed land seven years prior thereto, his name is deleted from the record of rights, which is not pursuant to any order made by a court of competent jurisdiction. The name has not been deleted after conducting a case under section 32(1B) of the Tenancy Act. Hence, the deletion of the name of the tenant on the basis of his reply is illegal as per the provisions of the Tenancy Act. SCA/9024/2000 12/30 JUDGMENT (v) Entry number 33 was based upon an order of the taluka office and the same could not have been deleted without an order passed by a Court of competent jurisdiction. (vi) The revenue record village form No.7/12, for the period from 1949-50 to 1954–55, shows “through servants” and “cultivation mode-2” in the rights column. That, neither the applicants nor the opponents have led any evidence to show as to whose servants were cultivating the land. (vii) A mutation entry has been made in respect of the disputed land on 5.3.72 being mutation entry No.323. As per the said entry, the opponent Govindlal Maganlal Shah had been given the disputed land by way of gift/will by his aunt (mami) Bai Chandanben and that the said land had been given by the said Govindlal to his wife Savitaben by way of partition. (viii) The opponent had examined himself and has produced documentary evidence and has not examined any other witness. (ix) The applicants have examined their witnesses who have been cross-examined by the learned Advocate for the opponent. (x) As per the instructions issued by the State Government vide amended resolutions and circulars after 3.3.73, due inquiry should be made to ensure that the rights of tenants are not snatched away and decision should be taken thereafter. Accordingly in respect of the disputed land the name of Ukedia Daliya had been entered vide order passed by a court of competent jurisdiction and the same has been deleted without an order of a Court of competent jurisdiction. That on the basis of the record, on SCA/9024/2000 13/30 JUDGMENT the date when the name of the tenant was deleted vide entry No.166 on 15.6.55, it appears that the tenant was in possession of the disputed land. Hence, all the heirs of the tenant Shri Ukedia Daliya are entitled to purchase the disputed land. (xi) The opponent has not been able to lead cogent evidence to show that the applicant herein is serving at Kadiyana, Tal: Chhotaudepur. And in case the applicant is serving at Kadiyana he would be managing the agricultural activities during the agricultural season and in his absence his brothers appear to be cultivating the land. (xii) If the opponent is cultivating the land from 1950- 51, in the revenue record the “Mode of Cultivation” would be shown as Mode-1, however, there is no such entry. (xiii) That the disputed lands have been declared as a backward area by a Notification dated 31.3.57 of the Government according to which from 10.5.57 the maximum purchase price for lands situated in the backward areas can be determined at 80 times. The assessment accordingly, as all the villages of the said taluka have been declared as backward area the purchase price of the disputed land is required to be fixed at 80 times the assessment. (xiv) Considering the findings arrived at hereinabove, all the heirs of deceased tenant Ukedia Daliya, whose name has been entered in the record of rights pertaining to the disputed land, have become entitled to purchase the lands prior to 15.6.55 i.e. from the date when his name was entered in the record of rights on the basis of an order of a competent Court. 19. The Mamlatdar and ALT has accordingly held that on the SCA/9024/2000 14/30 JUDGMENT basis of the record it appears that the petitioner/tenant was in possession of the disputed land as on 15.6.55 and as such was entitled to purchase the same. 20. The Deputy Collector in his order dated 2nd July, 1998 has noted that according to the respondent No.3 the petitioner had never cultivated the disputed land and that there is merely an entry of protected tenant. The possession of the disputed land has been given up seven years prior to 1955 i.e., from 1948 and upon the tenant giving such a statement by consent, his name was deleted and entry No.166 was certified on 2.11.55. Looking to the village form No.7/12, from the period 1949-50 the name of the petitioner is not reflected in the cultivators’ column in respect of any year. There is an entry to the effect that the land is cultivated through servants. Hence, the contention that, therefore, the petitioner cannot be considered to be a tenant under the provisions of section 32G, 32PPP or 72(b) or any other provision of the Tenancy Act deserves acceptance. That, the finding arrived at by the lower Court that the tenant was in possession of the disputed land as on 15.6.55 as per the amended provisions of the Tenancy Act, is not supported by any evidence. Looking to the record as well as entry No.166, Ukedia Daliya whose name had been entered as a protected tenant had given up possession from 1948. As regards the contention that the landholder has not cultivated the land personally, as per the provisions of section 4 of the Act, if the landholder upon personal supervision has made payment in cash or kind towards labour, such servants cannot be said to be tenants. Besides there is no entry to the effect that the landholder has engaged the protected tenant as a servant. Thus, the petitioner has not been able to establish SCA/9024/2000 15/30 JUDGMENT on the basis of the record that he is