IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3340 & 3350 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO ------------------------------------------------------------- SURSANGJI AMBARAM Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3340 of 2002 MR AJ PATEL for Petitioners in S.C.A. No.3340/2002 MR JM PATEL for Petitioners in S.C.A. No.3350/2002 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 18/03/2002 COMMON ORAL JUDGEMENT Both these petitions are directed against the judgment and order dated 7.8.2001 passed by a Division bench of the Gujarat Revenue Tribunal ("the Tribunal" for brevity) in Revision Application No.TEN.B.A.27/2001 under the provisions of Section 76 of the Bombay Tenancy and Agricultural Land Act, 1948 ("the Act" for brevity). 2. By the impugned judgment the Tribunal has set aside the judgment and order dated 25/10/2000 passed by Mr.S.G. Bharwad Deputy Collector (Land Reforms & Appeals), Ahmedabad in an appeal which was preferred after delay of 40 years against the order of the Mamlatdar passed in the year 1960. Earlier, against the same order, occupants of the land (petitioners in Special Civil Application. No.3340/2002) had filed revision application after 34 years under Section 76 A of the Act. That revision application was allowed by the Deputy Collector on 4/4/95. When a revision application was filed by the State Government against the said order dated 4/4/95 before the Tribunal, the occupants filed a note for taking up the matter for immediate hearing and at the hearing of the revision application submitted a purshis (a note in writing), giving consent for setting aside the said order dated 4/4/95 of the Deputy Collector. The Tribunal by its order dated 28/2/2000 allowed the said revision application and set aside the order dated 4/4/95 passed by Deputy Collector (Land Reforms) Ahmedabad. Thereafter the occupants preferred an appeal under Section 74 of the Act before Mr.S.G.Bharwad who was at the relevant time Deputy Collector (Land Reforms & Appeals) at Ahmedabad. By an order dated 25/10/2000, Mr.S.G. Bharwad, Deputy Collector allowed the appeal in favour of the occupants and modified the order of the Mamlatdar and Agricultural Land Tribunal passed as far back as in 1960, after observing that the conditions imposed by the said order were a nullity; therefore, the same could be interfered with even after 40 years. The occupants have filed Special Civil Application No.3340/2002 whereas Mr.S.G. Bharwad Deputy Collector has filed Special Civil Application No.3350/2002 challenging the same judgment on the ground that disciplinary proceedings have been initiated against him on account of his judgment dated 25/10/2000, which has been set aside by the Tribunal. 3. Before setting out the facts leading to filing of the present petition and also the contentions raised, it is necessary to make a brief reference to the scheme of Section 43 of the Tenancy Act. The Tenancy Act is an Act to amend the law relating to the tenancy of Agricultural Lands and is basically a law for agrarian reforms. But for this Act, the tenants who were cultivating land for a number of years, would have continued to remain tenants and would never have become owners of the lands which they were cultivating for a number of years. Chapter III of the Act confers special rights and privileges on tenants and provisions for distribution of lands for personal cultivation. Para-II of the said chapter opens with Section 32 of the Act which states that on the first day of April, 1957 (tillers' day) every tenant shall be deemed to have purchased from his landlord, free of all encumbrances, the land held by him as tenant, if, such tenant is a permanent tenant thereof and cultivates land personally or even if such tenant is not a permanent tenant but cultivates the land leased personally and the landlord had not given notice of termination of tenancy under Section 31 or the landlord had not applied to the Mamlatdar before 31st March, 1957 for obtaining possession of the land on the ground of termination of tenancy or otherwise. There are various other provisions in Section 32 which are not relevant for the purposes of the present controversy. Section 32-G provides that as soon as may be after the tillers' day the Agricultural Land Tribunal shall publish a public notice in each village calling upon all tenants who under Section 32 are deemed to have purchased the lands, all landlords of such lands and all other persons interested therein to appear before the A.L.T. on the specified date. The Tribunal shall also issue a notice individually to each such tenant, landlord and other interested persons and the A.L.T. shall record the statement of the tenant whether he is or he is not willing to purchase the land held by him as a tenant. If the tenant is willing to purchase, the A.L.T. shall, after giving an opportunity to the tenant, the landlord and other interested persons and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of Section 32-H and Section 63-A(3) of the Act. The purchase price to be paid by the tenants is much less than the market price - being only 20 times the land revenue assessment or 6 times rent of the land. This is obviously so because the Tenancy Act is a law for agragian reforms under which the tenants are given ownership in the lands; but this ownership is not absolute unrestricted ownership because the agricultural land is to be given to the tenant for personal cultivation. Hence Section 43 provides that the land purchased by a tenant under the aforesaid provisions shall not 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. Sub-section (1A) of Section 43 further provides that such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government. By subsequent amendment made it was provided through Sub-section (1B) that these restrictions are not to be applied to a permanent tenant, if, prior to purchase, the permanent tenant held a transferable right in the tenancy of the land. Sub-section (2) provides that any transfer or partition in contravention of subsection (1) shall be invalid. Under the aforesaid provisions of Section 43, the State Government issued instructions from time to time lying down the conditions for granting permission under subsection (1) of Section 43. In cases where the restrictions under subsection (1) of Section 43 are applied, the land is known as new tenure land. In cases where such restrictions are not applied the land is known as old tenure land. Hence, if any land is purchased by tenant under the aforesaid provisions of the Tenancy Act, he can not sell the land without prior permission of the Collector, but he would have to apply to the Collector for such permission. He would have to specify the purpose for sale and the purpose for which purchaser would utilise the land. Since the tenant was given the advantage of purchasing the land at a very low cost, whatever profits he would derive on selling the land, he would be required to share the same with the society because he was granted the land at a throw away price for his personal cultivation. The State Government accordingly issued instructions laying down how to determine the profit being made by the tenant turned purchaser. The part of the price to be paid by the seller to the State Government is known as premium. Therefore the premium would have to be paid for selling a new tenure land to another person even as a new tenure land. While applying for the permission, the permission could also be sought for converting the new tenure land into old tenure land, which would free the land from all restrictions under Section 43 of the Act. For converting the new tenure land into old tenure land, the premium would be much higher. Keeping this scheme of Section 43 of the Tenancy Act in the mind, the Court proceeds to set out the facts. 4. The facts leading to the present controversy briefly stated are as under :- 4.1. The land in question, admeasuring 4 acres, 5 gunthas is in survey No.18 of village Makarba, Taluka Dascroi, District Ahmedabad and is now in the outskirts of Ahmedabad city. There were proceedings under Section 32G of the Act, Tenancy case No.23/Makarba wherein by his order dated 18/2/1960 the Agricultural Land Tribunal (A.L.T.) and the Additional Mamlatdar gave a finding that Ambaram Bhuptaji was a tenant of the land in question on 1/4/57, he was willing to purchase the land and the land did not fall in any exempted category, nor had the landlord or the tenant claimed any exemption under the Act. So the tenant was entitled to purchase the land under Section 32 of the Act on the Tillers' day. Accordingly tenant Ambaram Bhuptaji was deemed to have purchased the land on 1/4/1957. The purchase price was fixed at Rs.1700/- and he was required to pay the landlord the said amount with interest at the rate of 4.5.% and also the rent in arrears. 4.2. In the year 1995, the heirs of Ambaram Bhuptaji through their power of attorney filed tenancy revision application No.34/95 before the Deputy Collector (Land Reforms & Appeals) Ahmedabad under Section 76A of the Act challenging the aforesaid order dated 18/2/1960 contending that their forefathers were tenants of the land in question since 1949-50. But they were not held to be permanent tenants which was contrary to law. Moreover, the land in question was treated as a new tenure land (that is the land in respect of which there was restriction regarding the sale) which was also contrary to the law because the Mamlatdar's order under appeal did not incorporate any such condition that the land will be treated as a new tenure land. Hence, the Mamlatdar's order dated 18/2/1960 be set aside and the appellants be treated as permanent tenants of the land and the entry regarding new tenure condition also be deleted. 4.3. By his order dated 4/4/95, Mr.J.C. Patel, Deputy Collector (Land Reforms & Appeals) Ahmedabad allowed the revision application and modified the Mamlatdar's order dated Nil/1960 in Tenancy case No.23/Makarba. In the said order the Deputy Collector mentioned that in the revenue record Ambaram Bhuptaji's name was entered as a tenant on 27/2/1949. Ambaram Bhuptaji was entitled to purchase the land as a permanent tenant and he was not subject to the restrictions under the Tenancy Act. The Deputy Collector also modified the order of the Mamlatdar on the ground that the said order did not clarify whether Ambaram Bhuptaji was a permanent tenant or an ordinary tenant, and held that Ambaram Bhuptaji was entitled to be treated as a permanent tenant. Hence the order of the Mamlatdar was null and void ab initio and since it was contrary to the law it was required to be modified. The Deputy Collector further held that as per the decisions of the various Courts if an order is null and void, the period of limitation does not apply to the appeal or revision against such order. Hence, even though the revision application was prima facie time barred, it was treated as within the period of limitation. 4.4. The State Government challenged the aforesaid order of the Deputy Collector before the Gujarat Revenue Tribunal through revision application No.B.A.429/96. On 14/2/2000 the occupants, that is the heirs of Ambaram Bhuptaji filed a note before the Tribunal for taking up the matter as the occupants were desirous of presenting a purshis (page 36 and page 37 of the paper-book). The purshis read as under :- (translated) The Gujarat State Revenue Tribunal, at Ahmedabad B.A. No.429/96 Petitioner : The State of Gujarat Vs. Respondents : Sursangji Ambaram etc. through power of attorney holder Sureshbhai. The applicants respectfully submit as under :- The above numbered revision application has been filed by the State Government against the order dated 4/4/95 of the Deputy Collector, Ahmedabad in revision case No.34/95. We the respondents in the above revision application, state that if the revision application of the State Government is allowed, we have no objection. Hence, the Hon'ble Tribunal may be pleased to allow the above numbered revision application and pass such orders as may be deemed fit. Signature (Sursingh Ambaram Mahutaji) On the basis of the aforesaid consent purshis, the Tribunal noted that there could be no objection to setting aside the order of the Deputy Collector under challenge in the revision application. The Tribunal accordingly set aside the aforesaid order dated 4/4/95 of the Deputy Collector (Lands Reforms & Appeals). This order dated 28/2/2000 was passed by the Division Bench of the Tribunal consisting of Mr.A.K. Chakravarty President and Mr.B.K. Shah, Member. 4.5. Thereafter the occupants through their same power of attorney Sureshbhai Shah filed tenancy appeal No.126/2000 under Section 74 of the Act on 15/9/2000, against the same order dated Nil/1960 in tenancy case no.23/Makarba. In the said appeal also the order was challenged on the ground that the restrictions of the new tenure under Section 43 of the Act were erroneously imposed respect of the land in question. In the said appeal also it was contended that the appellants were entitled to be treated as a permanent tenant under the provisions of Section 2 (10) (A) (B) in the Act, and therefore, the restricted tenure conditions under Section 43 of the Act were not applicable. 4.6. The State Government raised two preliminary contentions limitation and res judicata. It was contended on behalf of the State Government that the order under challenge was passed in the year 1960 and the period of limitation for challenging such order under Section 74 of the Act was 60 days. The application dated 15/8/2000 for condonation of delay (annexure-J page 41) with affidavit (annexure-K page 42) merely stated as under :- "The A.L.T. had passed the order which is correct, but on the basis of that order restrictions under Section 43 of the Act were applied. That part of the order was invalid and nullity and, therefore, there was no bar of limitation. There are several judgments of our High Court. Hence, there was no need for filing an application for condonation of this delay. If there is any delay in filing appeal the appeal may be condoned for the aforesaid reasons." The Deputy Collector Mr.S.G. Bharwad overruled preliminary objection of delay and bar of limitation on the ground that, that part of the order imposing conditions under Section 43 of the Act not treating the tenant as a permanent tenant was null and void ab-initio. Reference was made to the decisions of the High Court and of the Tribunal to the effect that the Courts should not dismiss the meritorious matters on the technical consideration of limitation and that substantial justice should be preferred. 4.7. As regards, the second contention on the point of res-judicata, it was contended on behalf of the State Government that order of the Mamlatdar and A.L.T. passed in 1960 was earlier taken in revision by the Deputy Collector in the year 1995 and by order dated 4/4/95 the revision application was allowed and the order of the Mamlatdar was modified. When the State Government challenged that order in revision application No.429/96, the occupants had given consent for setting aside that order dated 4/4/95. The Tribunal had by its order dated 28/2/2000 set aside the order dated 4/4/95 of the Deputy Collector. Hence this appeal preferred by the same petitioners/appellants for the same relief was not maintainable. The reply of occupants to the aforesaid preliminary contention was that the order dated 4/4/95 passed by the Deputy Collector in revision under Section 76-A of the Act was without jurisdiction, illegal and void ab-initio and such order was not likely to be sustained in revision before the Gujarat Revenue Tribunal and that upon being convinced of the same, the occupants had requested the Tribunal to take up the revision application immediately before the Tribunal could give any finding or make any observation adverse to the occupants. It was, therefore, the argument of the occupants that since the Tribunal had allowed the Revision Application by setting aside the order dated 4/4/95 of the Deputy Collector without making any observation damaging the occupants, the bar of res-judicata would not apply and, therefore, the tenants were entitled to prefer the appeal under Section 74 of the Act. Deputy Collector Mr.S.G. Bharwad accepted the above submission of the occupants and held that since the Tribunal had in its judgment dated 28/2/2000 set aside the previous order dated 4/4/95 of the Deputy Collector without making any observation or without giving any finding adverse to the occupants and since the said order of the Deputy Collector was a nullity and non-existent under Section 76A of the Act, the bar of res-judicata would not apply and the appeal under Section 74 of the Act was required to be decided by Deputy Collector independently without being influenced by the previous order of the Tribunal. 4.8. By the judgment and order dated 25/10/2000, Mr.S.G. Bharwad Deputy Collector (Lands Reforms & Appeals) Ahmedabad allowed the appeal and modified the order dated 18/2/1960 of the Mamlatdar. He held that the appellants' father Ambaram Bhuptaji was a permanent tenant of the land in question and that the land be treated as having been sold as an old tenure land without any restrictions whatsoever and that the Mamlatdar and A.L.T. shall issue a notice for furnishing a fresh certificate under Section 32M of the Act and that necessary entries be made in the revenue record. The Deputy Collector further held that reference to the restriction under Section 43 of the Act as restricted tenure land was also required to be deleted in the certificate of purchase under Section 32 M of the Act and in the revenue record also. 4.9. The aforesaid judgment and order dated 25/10/2000 of Mr.S.G. Bharwad Deputy Collector (Land Reforms) was carried by State Government in revision before the Tribunal being revision application No.27/2001. After filing of the revision application by the State Government, Mr.S.G. Bharwad, Deputy Collector (Land Reforms & Appeals) who had passed the order dated 25/10/2000 was suspended by the State Government on 9/1/2001. He filed Special Civil Application No.274/2001 challenging the order of suspension. This Court (Coram: Mr. Justice D.C. Srivastava) admitted the petition and granted interim relief in favour of Mr.S.G. Bharwad. In the present proceedings we are not concerned with that service matter. However, after the arguments of the learned advocate for the occupants and the learned Government Pleader were concluded before the Tribunal, Mr.S.G. Bharwad sent his written submissions dated 18/7/2001 to the Tribunal seeking to explain his order dated 25/10/2000. The Tribunal observed that Mr.Bharwad was not a party to the revision application, obviously because when the revision application was heard in July, 2001 and decided in August, 2001 Mr.S.G. Bharwad was not holding the post of Deputy collector (Land Reforms), Ahmedabad. 4.10. By the impugned judgment and order dated 7/8/2001 the Tribunal allowed the revision application and set aside the order dated 25/10/2000 of Mr.S.G. Bharwad, Deputy Collector. The Tribunal considered the arguments of both the parties that is of State Government and also of the occupants. The Tribunal also referred to certain irregularities pointed out by the learned Government Pleader, in the order of Deputy Collector and found that there was substance in that grievance. However, it is not necessary to refer to the said irregularities as the Tribunal has considered the matter on merits and found that the order of the Deputy Collector was not sustainable. The findings given by the Tribunal on merits will be considered while dealing with the arguments of the learned counsel for the petitioners in this petition. 5. Mr.A.J. Patel learned counsel for the occupants petitioners in Special Civil Application No.3340/2002 has raised the following contentions :- 5.1. The judgment under challenge was vitiated by bias of the President of the Tribunal. 5.2. The order passed by the Deputy Collector earlier on 4/4/95 under Section 76A of the Act was without jurisdiction, hence it was rightly set aside by the Tribunal with consent of the parties and thereafter the appeal was preferred under Section 74 of the Act alongwith application for condonation of delay. Hence, the Deputy Collector had rightly condoned the delay and allowed the appeal. The Tribunal ought not to have set aside the order. 5.3. What the Deputy Collector had done was in accordance with Government Resolutions. Even if there may be any fault in the reasoning of the Deputy Collector, the Tribunal ought not to have disturbed the order of the Deputy Collector as the same was in consonance with law. 6. Mr.J.M. Patel learned counsel for Mr.S.G. Bharwad, (author of the order dated 25/10/2000), has submitted that the said Deputy collector had passed a quasi judicial order in exercise of his appellate powers and the Tribunal ought not to have made any observations or passed strictures against him without giving him an opportunity of being heard. Moreover, the Tribunal had acted in an arbitrary and discriminatory manner in making observations against Mr.S.G. Bharwad inasmuch as no such observations were made against Mr.J.C. Patel who had passed the previous order dated 4/4/95 and who had also passed similar orders in many other cases. On merits Mr.J.M. Patel has adopted the argument of Mr.A.J. Patel for the occupants. 7. Before dealing with the first contention on the ground of bias, it is necessary to discuss the other contentions on merits as they are interconnected and also because the allegation of bias can be better understood after appreciating the contentions on merits. 8. The statutory provisions relevant for the present controversy are as under :- SECTION 43 : (1) No land or any interest therein purchased by a tenant under Section 17B, 32, 32F, 32-I, 32-O 32U, 43-ID 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 subsection (1)shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.] (1AA) ............... (not relevant) (1B) Nothing in sub-section (1) or (1AA) shall apply to land purchased under Section 32, 32F, 32-O or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom agreement, or decree or order of a Court, held a transferable right in the tenancy of the land. (2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of subsection (1) shall be invalid. SECTION 74 :- Appeals :(1) An appeal against the order of the Mamlatdar and the Tribunal may be filed to the Collector in the following cases :- (a) to (mm) ......... (ma) an order under subsection (1B) and (2) of Section 32, (mb) a decision under section