Gujarat High Court
Babubhai Vitthalbhai Patel Through ... vs Mamlatdar And Agricultural ... on 17 January, 2007
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. The short facts of the case are that the petitioners/their forefathers purchased various parcels of the land, which are subject matter of the petitions in capacities as tenants of the concerned land as per the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act). It is an admitted position that when the properties were purchased or the sale certificates were issued in favour of the concerned petitioners, no sale certificate contained the right in favour of the concerned petitioners/the predecessor in title, as unrestricted tenure or with a transferable right. It is also not in dispute that all the petitioners purchased the property as per the Scheme of the Act being Tenants of the land in question either themselves or their forefathers after the tenancy rights were adjudicated and ultimately as there is statutory right of purchase the price was fixed and the sale certificates have been issued.
2. In the year 1960 by amendment in Section 43 of the Act, Sub-section (1B) has been inserted in the statute book, providing that the requirement for payment of the premium as per Sub-section (1) of Section 43 shall not be applicable, if the land is purchased by a permanent tenant provided prior to the purchase, such permanent tenant by usage or custom or by agreement or decree by the order of a Court held a transferable right in the tenancy of the land. The State Government, after the amendment issued circular dated 22nd October, 1965 and clarified that if the tenant has purchased the property and the certificates are already issued prior to the amendment, but it is proved that such tenant had a transferable right, they would be entitled to the benefits of Sub-section (1B) and the certificates are not required to be corrected. Thereafter on 26.9.1967, the State Government issued another circular further clarifying the position that in the event the certificates are already issued and if the transferable rights were already proved, prior to issuance of the certificate the condition of restricted tenure may be deleted. It was also provided in the said circular that in the event there is no adjudication by the competent authority regarding the transferable right of the permanent tenant, whose certificate is already issued under Section 32G of the Act, such tenant if makes application, the matter may be examined by the Mamlatdar under Section 70(o) of the Act and if the transferable rights are proved, the certificates issued under Section 32G of the Act may be amended accordingly. It appears that thereafter again the circular came to be issued by the State Government on 18.3.1996 reiterating the provisions of the statute and further clarifying that whether the tenant, who has claimed the tenancy right as the permanent tenant or not is an aspect to be considered on the basis of Village Forms No. 7, 7a and 12 in the revenue record and contingencies including that of establishment of the right as the permanent tenant by entry in the revenue record for cultivation by forefathers of the person concerned prior to 1.8.1956 and even for the cultivation shown in the revenue record for last 15 years from 1.1.1936 to 1.8.1956 may be considered for declaring the person as the permanent tenant, while deciding the application under Section 70(o) of the Act. It was also provided in the said circular that if the person is declared as permanent tenant under Section 70(o) of the Act, the matter is required to be forwarded for scrutiny to the Dy. Collector (Land Reforms) and the Dy. Collector (Land Reforms), if required, may forward the papers for observations to the Collector with his opinion and if the power is not properly exercised and the matter may also be considered for exercise of the revisional power if the power is not properly exercised by the Mamlatdar. Various other instructions are mentioned in the said circular, which to the extent of relevance shall be referred to hereinafter. Thereafter, another circular came to be issued on 18.9.1997, whereby the period of 15 years is reduced to 10 years prior to 1.8.1956 for declaration as permanent tenant.
3. The petitioners herein have made the application to the concerned Mamlatdar and ALT under Section 70(o) of the Act for declaration of their status as the permanent tenant and as per the petitioner, it was also prayed that it may be declared that the restriction under Section 43 of the Act are not applicable to the land held by the petitioner as the permanent tenant and the revenue record be corrected accordingly. It appears that the Mamlatdar and ALT entertained the application of the petitioner as under Section 70(o) of the Act and he found that the possession for the requisite period is established by other evidence but such is not reflected from the revenue record since the revenue record itself is not available and ultimately the Mamlatdar has dismissed the application. It is under these circumstances, the petitioners have approached this Court by preferring the present petitions, challenging the order of the Mamlatdar dismissing the application under Section 70(o) of the Act for the declaration of the status as permanent tenant with a transferable right.
4. On 16.10.2003, in view of various irregularities brought to the notice of the State Government, general instructions were issued by circular of the State Government that the proceedings of all matters, which are pending before the Mamlatdar under Section 70(o) of the Act shall remain stayed and it was further directed that no application be entertained by the Mamlatdar and ALT. The said circular was also challenged in the proceedings of SCA No. 609 of 2004 and others, in which the declaration was made on behalf of the State Government by Mr. Kamal Trivedi, the then learned Additional Advocate General that the circular dated 6.10.2003 is withdrawn and, therefore, the Court observed that the concerned Mamlatdar and ALT would decide the application in accordance with law. It may be recorded that pending the present proceedings, one another circular dated 7.10.2005 has been issued by the State Government in supersession of all circulars and has further instructed that the powers under Section 43 are with the District Collector and, therefore, both the conditions should be fulfilled namely; that a person concerned is a permanent tenant and had a full transferable right. It is stated that the earlier instructions for cultivation for last 10 years in piece meal for a period from 1.1.1936 to 1.8.1956 are not proper and it is further instructed that the transferable right must be un-disputably established. It is also provided in the said circular that the transferable rights are to be examined for the period prior to 1960 in respect to those cases, where the decision is already taken under Section 32A and 70(b) of the Act and the cases, which have been decided after 13.12.1960 under Section 32G and 70(b) of the Act and in cases where the purchase prices are fixed under Section 32H of the Act and the tenancy is already decided, the restriction shall not be lifted upon the application for the purpose of considering the cases under Section 43(1B) of the Act. It is also provided in the said circular that if the decision is not taken for the transferable right of the permanent tenant, and if any application is made, the Mamlatdar and ALT has to hold the inquiry and collect evidence under Section 70(o) of the Act, but the burden of establishing that the tenant had a transferable right would be upon tenant. The Collector will have to verify evidence and will have to arrive at the finding that the tenant has the transferable right and such an application will be entertained only of the tenant or his successor and not of their administrator or power-of-attorney. It is also provided in the said circular that if any application is made by the tenant for lifting of the restriction under Section 43(1B), the Collector will have to preliminarily examine the matter as to whether the application is within time or not. The powers vested to the Mamlatdar under Section 70(o) of the Act by the earlier circular are withdrawn and it is further provided that after the rights are un-disputably established and the finding is recorded, the order shall not be passed by the Collector, but the proposal shall be forwarded to the Revenue Department of State Government. The revenue department shall intimate to the Collector its decision and thereafter only the detailed order shall be passed by the District Collector. It is also provided in the said circular that under the provisions of Section 43(1) read with provisions of Section 43(1B) of the Act the Collector has the power and, therefore, the power as entrusted to the Mamlatdar and ALT under Section 70(o) of the Act vide Circulars dated 22.10.1965, dated 26.9.1967, 18.3.1996 and 18.3.1997 are withdrawn and the power shall remain with the Collector only, who shall exercise the power as per the instructions in the circulars and strict compliance of the circular is instructed.
5. The petitioners of SCA No. 9609 of 2006 has prayed to declare that the Circular dated 7.10.2005 does not apply to the cases, which have already been decided by the Mamlatdar under Section 70(o) of the Act. It is alternatively prayed by the petitioner that the certificate dated 7.10.2005 be quashed and set aside and the respondents be directed to enforce the circular and operate the same.
6. Heard Mr.S.S.Sanjanwala for Mr.R.S.Sanjanwala, learned Counsel and Mr.Amit B. Thakkar, learned Counsel, for the petitioners. I have also head Mr.Kamal Trivedi, learned Advocate General assisted by Ms.Sangeeta Vishen, learned AGP for the State Authorities in all the matters.
7. The first question which may be required to be considered is the availability of the alternative remedy to the petitioner against the order passed by the Mamlatdar under Section 70(o) of the Act. It is not in dispute that by the circular of the State Government prior to 2005 the State Government itself observed that such aspects of the declaration of the status of the person as permanent tenant with transferable right may be examined by the Mamlatdar under Section 70(o) of the Act, nor it is in dispute that the Mamlatdar has not exercised the power under Section 70(o) of the Act. Therefore, in all cases, the impugned decisions taken by the Mamlatdar are under Section 70(o) of the Act read with the circulars of the State Government providing for the information to be supplied to the Dy. Collector and also to the Collector, as the case may be.
8. As per the Scheme of the Act, the Mamlatdar and ALT is the first adjudicating authority for establishing the rights of the tenant in any land to which the Act applies. The Collector, as such, is having a supervisory power inasmuch as Section 72A of the Act provides the enabling power to the Collector to transfer the proceedings from one Mamlatdar to another Mamlatdar. Section 74 of the Act provides that an appeal against the order of the Mamlatdar and the Tribunal may be filed before the Collector in certain cases, which, in any case, do not provide for the order under Section 70(o) of the Act. So far as the orders under Section 70 of the Act are concerned, if they are passed under Clause (b) and Clause (a) & (b), the appeal can be preferred before the Collector and, therefore, the Collector is also having an appellate power. Section 74A of the Act provides for the power of the Collector to transfer and withdraw the appeal, if pending before any Assistant or Deputy Collector. Section 75 of the Act provides the appeal against the order passed by the Collector under Section 70 before the Revenue Tribunal and Section 76 of the Act provides for revisional power of the Revenue Tribunal against the order of the Collector, except the order under Section 32P or an order in appeal against the order under Sub-section (4) of Section 32G. Section 76A of the Act provides revisional power of the Collector, either suo motu or on a reference made in this regard by the State Government, subject to the outer limit of one year for exercise of the power. Section 76AA of the Act provides the revisional power of the State Government against the decision of the Collector in appeal made under Sub-section (4) of Section 32G of the Act. Section 80 of the Act provides that all inquiries and proceedings before the Mamlatdar and Tribunal, the Collector and the Gujarat Revenue Tribunal and the State Government shall be deemed as the judicial proceedings within the meaning of Section 193, 219 and 228 of IPC. Therefore, it appears that there is an inbuilt mechanism under the Act for exercise of the appellate and revisional power. However, there is no express provision under the Act either for appeal or for exercise of the revisional power against the decision of the Mamlatdar and ALT under Section 70(o) of the Act, save and except to the extent that the Collector may exercise suo motu power or upon the reference made in this behalf by the State Government against the decision of the Mamlatdar. However, the exercise of the power to call for for the record cannot be made after the expiry of the period of one year from the date of such order. The period of one year, in any case, has expired in all cases against the order of the Mamlatdar and ALT. Since the legislature has provided the express outer limit of one year to call for the record, it may not be possible for this Court to interpret the statutory powers of revision of the Collector with the power to condone the delay and, therefore, if the period of one year has expired after the order passed by the Mamlatdar, the revisional power by the Collector to call for the Record and Proceedings cannot be exercised.
9. It may recorded that after the impugned orders were passed by the Mamlatdar, the petitions have been admitted, more particularly the petitions which have been filed in the year 2005, and when this Court has considered the matter for final disposal, the period of one year, in any case, has expired from the date when the Mamlatdar has passed the order. In SCA No. 15464 of 2006 and No. 6108 of 2006, the impugned orders passed by the Mamlatdar are in July 2002 and January 2003 with the circumstances that the petitioners of SCA No. 6108 of 2006 did prefer the appeal instead of revision before the Dy. Collector, which has been dismissed as not maintainable on 26.7.2006. Therefore, considering the peculiar facts and circumstances, as the period of one year has expired from the date of passing of the order by the Mamlatdar, and when the matter is being considered at the time of final disposal, the time limit for the statutory remedy of revision before the Collector has also expired, I find that the petitions maynot be rejected on the ground that the petitioners have alternative, efficacious remedy. Further, even otherwise also as per the settled legal position, the existence of alternative remedy is no bar to the exercise of the power by this Court under Article 226 of the Constitution of India. Therefore, if peculiar facts and circumstances are demonstrated and this Court finds that in view of the admission of the petition, the petitioner would not be in a position to resort to alternative remedy, this Court may examine the matter under Article 226 of the Constitution of India and hence, I find that the preliminary contention raised on behalf of the respondent Authority by the learned Advocate General cannot be accepted.
10. The aforesaid takes me to examine the merits of the challenge made to the orders passed by the Mamlatdar and also the circular of 2005, which are the subject matter of the petitions. To conveniently consider various aspects, which may arise for consideration in this petition, the history of the statutory enactment has the relevance, which ultimately would culminate into the scope and ambit of the words 'a permanent tenant', who hold a transferable right in the tenancy of the land or not. The Act is a land reform act. The Bombay Tenancy and Agricultural Lands Act, 1948 when enacted for the first time in December, 1948, inter alia, provided for, the definition of the word 'tenant' means the agriculturist, who holds the land on lease and includes the person, who is deemed to be tenant under the provisions of the Act. It also provided for the definition of the words 'protected tenant' means the person, who is engaged to be a protected tenant under Section 31 of the Act. The provisions of the Transfer of Properties Act so far as they are not inconsistent with the provisions of the Act are made applicable to the tenancies and lease of the land to which the Act applies. The status of the protected tenant was like a statutory tenant and as per Section 43 of the Act of 1948 as then in existence, there was ban for transfer by sale or exchange or mortgage or assignment unless previous sanction of the provisional Government was granted. It deserves to be recorded that it only provided for previous sanction, but did not provide for any premium to be paid to the Government. The aforesaid Act of 1948 came to be amended in March, 1956 by Bombay Act No. XIII of 1956 which, inter alia, provided for the concept of permanent tenant and the definition of the word 'tenant' came to be extended to include deemed tenant as per Section 4, a protected tenant and a permanent tenant and in Section 70 in the duties and functions to be performed by Mamlatdar the words 'permanent tenant' were also added. Section 70(b) & Section 70(o) of the Act reads as under:
70 Duties of the Mamlatdar: For the purpose of this Act the following shall be the duties and functions to be performed by the Mamlatdar:
(a) x x x
(b) to decide whether a [person is, or was at any time in the past, a tenant] or a protected tenant [or a permanent tenant];
(c) x x x
(d) x x x
(f) x x x
(h) x x x
(i) x x x
(j) x x x
(k) x x x (kk) x x x
(l) x x x
(m) x x x (ma) x x x (mb) x x x (mc) x x x (md) x x x
(n) x x x
(o) to decide such other matters as may be referred to him by or under this Act.
11. Section 43 of the Act also came to be amended and it was provided that no land purchased by a tenant under Section 32, 32F, [32I, 32O, [33C or 43ID]] or sold to any person under Section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease, assignment or partition without previous sanction of the Collector and it was further provided that any transfer or partition of the land in contravention to the Act shall be invalid. The pertinent aspect once again, which deserves to be recorded, is that it did not provide for payment of premium at the time when the sanction was to be granted by the Collector. Thereafter in the year 1960 by Gujarat Act No. XVI of 1960, the Act of 1948 was further amended and Section 43 of the Act was substantially amended by adding the words providing for the payment of such amount as the State Government may by general or specific order determine when the Collector is to accord sanction for transfer, sale, mortgage etc. Sub-section (1A) was also added, which is not much relevant for the present petitions, however, Sub-section (1B) was added which provided, inter alia, that nothing in Sub-section (1) [or (1AA)] shall apply to land purchased under Section 32, 32F, 32O 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. The said sanction has continued to remain on the statute book. Thereafter, by Gujarat Act No. 30 of 1977, Section 43 is once again amended and it was further provided that no such land or interest therein shall be partitioned without previous sanctions of the Collector. The other part of amendment in Section 43 has no much relevance for the purpose of the petitions and Section 43(1B) remained the same so far as the rights of the permanent tenant are concerned, except that in addition to Sub-section (1) of Section 43, Sub-section (1AA) was added so as not to apply such restrictions to a land purchased by a permanent tenant.
12. Since the concept of permanent tenant came to be introduced in the year 1956 and non-applicability to the restriction under Section 43(1) of the Act came to be introduced in the year 1960 to the permanent tenant with a transferable right, in the cases where the decision was already taken of the person concerned as a permanent tenant, whether they had transferable right or not could be decided only under Section 70(o) of the Act by the Mamlatdar. As observed earlier, the Mamlatdar is exercising the power under the Act as that of the Tribunal. Once the power is exercised it gets exhausted unless the power is invoked under a different jurisdiction. Therefore, if a person is already decided/declared as a permanent tenant, but if the aspect as to whether a person concerned was holding a transferable right or not was not decided, the only source of power for such decision to the Mamlatdar and Tribunal would be under Section 70(o) of the Act. Therefore, the earlier circular of the Government, more particularly from 2.10.1965 to 18.10.1997, where in accordance with the Scheme of the Act read with the residuary power on Mamlatdar and ALT under Section 70(o) of the Act. As per the Scheme of the Act, the Mamlatdar is the first authority, who is to decide the rights of the tenant in any capacity, either as a deemed tenant or as a protected tenant or as a permanent tenant and while taking such decision, since the aspect of transferability of the tenancy right has the relevance in view of the Section 43(1B) of the Act, more particularly after 1960, the Mamlatdar will be the first competent authority to decide the scope and ambit of the rights of the tenant, whether a transferable right or a non-transferable right. The decision of the Mamlatdar as per the mechanism referred to hereinabove of the Act, is subject to the appeal and/or the revision before the Collector and thereafter before the Revenue Tribunal. The Collector, as per the Scheme of the Act, when is to exercise the power as against the decision of the Mamlatdar, is an appellate or revisional authority, as the case may be, and the decision of the Collector is subject to the scrutiny of the revisional power of the Tribunal or of the State Government, as the case may be. Of course, all such powers related to the quasi judicial powers of the State Government for deciding the rights of the tenant in the land and such would not be an executive power either of the Collector or of the State Government, nor in any case of the Mamlatdar and ALT, to decide the matter at the first instance.
13. Under the above circumstances, as per the Scheme of the Act, rights of all the tenants including the permanent tenants are to be decided and finalised by the Mamlatdar at the first instance and thereafter, subject to the revisional or other powers of the higher authority as per the inbuilt mechanism of the Act. Section 43 of the Act is a contingency, which occurs only after the rights of the tenants are so finalised in the land and the tenant who has purchased the property is seeking sanction of the Collector for transfer by sale, gift, exchange, mortgage, lease or assignment, etc. If as per the rights finalised by the Mamlatdar and ALT, subject to the powers of the higher forum, are falling in the category of Sub-section (1B) of Section 43 of the Act, the question of previous sanction would not arise. The role of the Collector while exercising the power for grant of sanction under Section 43 of the Act is not the same as that of either exercising the revisional power against the order of the Mamlatdar or is not that of the same while adjudicating the matter in revisional jurisdiction vis-a-vis the rights of the tenant in the land and that of the landlord. The role of the Collector under Section 43 of the Act is to the extent as to whether previous sanction should be granted or not?
14. If the certificate conferred upon a tenant is with the right to transfer of unrestricted tenure, the cases would be covered by Section 43(1B) and sanction would not be required and the Collector may be required to examine the matter only to that extent and in cases where the certificates are not issued with the rights of the permanent tenant on a transferable right or say unrestricted tenure, the restriction may apply and the sanction of the Collector would be required. The mechanism provided under Section 43 including Sub-section (1B) cannot be read to mean that as per the scheme of the Act, the statutory power or the jurisdiction at that stage is conferred upon the Collector to adjudicate as to whether the permanent tenant had a transferable right in the tenancy prior to the purchase or not. As such, in the matter of rights of a permanent tenant prior to the purchase, to a situation which has been conceived under Sub-section (1B) of Section 43 of the Act, the District Collector has no direct role to play at the first instance and if Section 43 is read as it is, the Collector has to go by the certificate of purchase with the declaration of the right given to the permanent tenant adjudicated by Mamlatdar at the appropriate time or in any case under Section 70 of the Act. The Collector plays the role only in revisional jurisdiction as referred to hereinabove in the event the Mamlatdar has decided a transferable right of the permanent tenant or has held that the permanent tenant had no transferable right prior to the purchase. The power under Section 43 of the Act of the Collector as per the Scheme of the Act can neither be conjoined with the revisional power nor can be read to the extent of adjudicating authority under Sub-section (1B) of Section 43 of the Act. If such powers under Sub-Section (1B) of Section 43 of the Act of adjudication at the first instance is read of the Collector, it would not only frustrate the inbuilt mechanism of the Act for adjudication of the rights of the permanent tenant by the Mamlatdar at the first instance, but it would also be contrary to the express statutory provision of Section 70 of the Act for adjudication of the rights by Mamlatdar and ALT at the first instance. The authority, i.e. the Collector, who has to exercise the revisional power against the order of the Mamlatdar and ALT qua the rights of the permanent tenant in the land, cannot be conferred with the power to decide such right of a permanent tenant against the express provisions of the Act read with the Scheme of the statute.
15. So is the position for the role of the State Government which is conferred with the higher power than the Collector in the matter of rights of the permanent tenant in a property purchased by him. The State Government, as referred to hereinabove, is further conferred with the revisional power against the order of the Collector in the matter when the adjudication is made at the first instance by the Mamlatdar and the Collector is either exercising appellate power or the revisional power. Therefore, it appears that the conferment of power for adjudication of the matter by the State Government as per the impugned circular dated 07.05.2005 or seeking approval of the State Government are against the basic scheme of the Act for adjudication of the matter qua the rights of the tenant in the land in question. The State Government while exercising the executive power, cannot issue instructions in contravention to the express provisions of the statute nor such power can be read to frustrate the scheme and mechanism provided under the Act for adjudication of the rights of the permanent tenant in the land and therefore, the said circular dated 07.10.2005 to that extent can be said as ultra vires to the statutory provision and the scheme of the Act so far as it relates to conferring the power upon the Collector to pass the appropriate orders or for seeking approval of the State Government by the Collector either jointly or severally in the matter where the aspects are required to be adjudicated for deciding the question as to whether the tenant had a transferable right in the land prior to the purchase or not.
16. It was contended on behalf of the petitioners that the circular dated 07.10.2005 cannot be made applicable to the pending proceedings before the Mamlatdar or in cases where the Mamlatdar has already taken decision and such decisions are subject matter of challenge in the present group of petitions, and therefore, it was prayed that this Court may accept the challenge to that extent.
17. It is by now well settled that no instructions of the Government even if valid, can be applied retrospectively and the instructions, even if valid, would apply only prospectively. Therefore, the circular even if valid, cannot be read to reopen the questions which are already decided by the Mamlatdar for adjudication of the rights of the permanent tenant in the land which is purchased by him.
18. At the most, such circular even if valid, may apply to the pending cases before the Mamlatdar and the applications which were made after the date of the circular. However, in view of the reasons recorded hereinabove, as the circular, so far as withdrawing from the Mamlatdar and conferring power to the Collector and of providing prior approval of the State Government are ultra vires the basic scheme of the Act for adjudication of the rights of a tenant in the land which is purchased by him so far as they relate to provisions of Section 43(1B) of the Act, it may not be required for this Court to further express the view on the aspects as to whether such circular would apply to the cases in which the decision is already taken by the Mamlatdar of rejecting the application of the permanent tenant or not? In my view , such aspects in view of the reasons recorded hereinabove, would be a mere academic exercise and therefore, it is not required to be concluded finally.
19. The aforesaid takes me to examine the aspects of the scope and ambit of Sub-Section (1B) of Section 43 of the Act. To make such claim as a base so as to fall under Sub-section (1B) of Section 43, as per the language of the statute, two requirements are must. One, the permanent tenants have purchased the land under Sections 32, 32F, 32O or 64 as per the Scheme of the Act and the second is that, prior to the purchase, the permanent tenant by usage, agreement or decree or order of the Court had a transferable right in the tenancy of the land. Whether a person has purchased the property as a permanent tenant or whether such permanent tenant had held a transferable right in the tenancy of the land prior to the purchase, are essentially in view of the scheme and the mechanism referred to hereinabove the questions, to be decided by the Mamlatdar at the first instance as per the Scheme of the Act and more particularly Section 70(b) & 70(o) of the Act. If the rights of the permanent tenant while deciding the case under Section 70(b) were already decided and concluded to the extent that he has held a transferable right prior to the purchase or not, no other further adjudication may be required. But in the event or in the cases where the permanent tenant has already purchased the property or the tenant has already purchased the property, and if he claims the adjudication as permanent tenant with a transferable right, the cases can also be considered under Section 70(b) but such contingency may continue to remain only upto the stage when the person concerned has not been conferred with the status of a permanent tenant. In cases where the declaration is already given and the status is already conferred upon the person of the permanent tenant under Section 70(b), and such tenant is to claim the status of permanent tenant with a transferable right at a later stage, the only source of power with the Mamlatdar can be traced in the residuary clause, which is Section 70(o) of the Act. So far as the declaration of the status of a person as permanent tenant is concerned, there is already an express definition under the Act. It is so as to have the conferment of the status as permanent tenant as per Section 2(10A). However, whether such permanent tenant had a transferable right or not is an aspect which is required to be considered by the Mamlatdar while adjudicating the rights of the permanent tenant in the land which is purchased or which may be purchased by him.
20. Therefore incidentally, the question arise for consideration before this Court, to interpret the words 'transferable right in the tenancy of the land'. The mode of such transferable right by usage, agreement, or decree or order of the Court are already provided in the language of Sub-section (1B) of Section 43 of the Act and therefore, no further discussion may be required in this regard, but the word Sa transferable right is not defined nor the reference of such right is brought to the notice of the Court in any other provisions of the Act, therefore, such aspect to be considered.
21. The relevant period during which the person concerned held the transferable right or not would be the period prior to the purchase of the land by such tenant. As observed earlier, the concept of permanent tenant is introduced for the first time in the year 1956 in the statute book. Therefore, for interpreting the words 'a transferable right', reference to the position prevailing qua the rights of the tenant in the tenancy prior to 1956 or 1948 may have some relevance. Prior to the enactment of the present Act in the year 1948, the Bombay Tenancy Act, 1939, was in operation. The reference to the provisions of Bombay Tenancy Act, 1939, shows that there were two separate definition of the word tenant and the word 'protected tenant'. The definition of the word 'tenant' provided that if the person was lawfully cultivating any land belonging to any other person, he should be at deemed to be a tenant unless the cultivation was not by the members of the owner's family or a servant on wages payable in cash or kind but not in crop share or a hired labourer. It was provided in the definition of the word protected tenant that the tenant shall be deemed to be protected tenant, if he had held such land continuously for a period of not less than 6 years immediately presiding January 1938 or January 1945 and he had cultivated such land either himself or in succession or by inheritance. Other deeming fiction were also provided for protected tenants in other sections, but in such cases, the requirement was cultivation for not less than 6 years. In the rights and liabilities of the protected tenant, it was provided as per Section 5 that the tenancy was not to be terminated unless the tenant had sublet the land or failed to cultivate the land personally etc. Section 9 of the Act provided that if the protected tenant has died, the landlord should continue the tenancy on the same terms and conditions to such tenancy upon one or the heirs of the tenant, subject to certain contingencies. Sub division of the land held by the protected tenant was barred by Section 10 of the said Act. Section 23 of the said Act provided that no lease should be granted, if made after the date of coming into force of the Act for the period of less than 10 years. Section 26 of the said Act provided that no provisions contained in this Act should be construed to limit or abridge the rights or privilege of any tenant under any usage or law for the time being in force or arisen out of the contract, grant, decree or order of the Court or otherwise howsoever.
22. Therefore, three pertinent aspects deserve to be recorded in the Scheme of the Act of 1939 and the same is that the tenancy of a protected tenant who cultivated the land for a minimum period of 6 years was to continue with one of the legal heirs. The another is that the Act provided for the minimum lease or tenancy not less than 10 years and the third one is that the Act was not to affect the rights and privileges of any tenant under any usage or law for the time being in force or arisen out of the contract, grant, decree or order of the
23. The tenancy or the lease for cultivation of the land by the owner with the tenant as such is a contract between the owner and the tenant. In normal circumstances, the tenancy may not continue in absence of any statutory provision, if the person concerned who is a tenant, expires, since privity of the contract is between the owner and the person concerned for cultivation. Whether such tenant holds the right to inherit his tenancy to his legal heir is also an aspect, which may touch to the transferability of the tenancy if the matter is examined strictly as per the provisions of the Indian Contract Act.
24. If the lease for cultivation is executed, the interest would be created as per the provisions of the Transfer of Properties Act and the question of transferable right of the lessee may be required to be interpreted as per the provisions of the Transfer of Properties Act. Another aspect deserves to be recorded is that as per the provisions of the Act of 1939, the rights, if any, with the tenant as per the law for time being in force were not to be restricted nor to be abridged by virtue of the provisions of the Act of 1939. Therefore, if the cases are covered by the statutory tenancy, the rights of the tenant in a land were covered by the provisions of the Act, then in existence, for establishing the transferable right. However, if the cases are covered by a mere contractual tenancy, the provisions of the Transfer of Properties Act may apply to the extent of not inconsistent with the provisions of law.
25. Mr. Trivedi, learned Advocate General, by relying upon the provisions of Section 3 of the Act, contended that the provisions of Transfer of Properties Act would not apply, since the transfer is barred under the Act and it was therefore submitted that for interpreting the word Stransferable right, the reference to the provisions of the Transfer of Properties Act would be extraneous. Whereas, on behalf of the petitioners, it was contended that while interpreting the word Stransferable right of a permanent tenant in the land, the only relevant reference would be the Transfer of Properties Act and it was submitted that as per Section 108 of the Transfer of Properties Act, the rights with the lessee are provided as per Clause (j) of Section 108 of the Transfer of Properties Act. Therefore, it was submitted that once it is established that the lease was in existence, to claim the right as tenant, the transferable right is to be presumed unless otherwise established for restriction of such right.
26. The transferable right by a statutory tenant may stand differently but if the transferable right of the lessee by contract is to be examined, such can be traced by making reference to Section 108 of the Transfer of Properties Act. Even as per the decision of the Division Bench in case of Thakorelal Amratlal Vaidya v. Gujarat Revenue Tribunal and Ors. reported at , read with the provisions of Section 3 of the Act, the provisions of the Transfer of Properties Act (hereinafter referred to as 'TP Act'), would be applicable.
27. The inconsistency as sought to be canvassed on behalf of the State is on misconception inasmuch as the transferability is to be determined not on the basis of the provisions of the present Act but is to be determined during the period prior to the date of purchase. There is no prohibition expressly made in the statute for such transferability for the period prior to the Act came into force. Therefore, as the position to be considered is for the period prior to the date of purchase or rather for the period prior to 1956, the restriction as provided under Section 27 of the Act, cannot be read for nullifying the applicability of the Transfer of Properties Act for the period which is to be considered for adjudication of the rights of the tenant as conceived under Section 43(1B) of the Act. Therefore, the contention of the learned Advocate General that the provisions of the Transfer of Properties Act cannot be made applicable for deciding the transferability of the rights of the tenant as conceived under Section 43(1B) of the Act cannot be accepted. Even otherwise also, as per the decision of this Court in the case of Thakorelal Amratlal Vaidya (supra) the provisions of the TP Act would apply in any case where the contractual tenancy remain in operation.
28. Section 108(j) of the TP Act which is relevant at this stage reads as under: SRights and liabilities of the lessor and lessee-In absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:
(A) Rights and Liabilities of the Lessor (B) Rights and Liabilities of the Lessee
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) ...
(i) ...
(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;
Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee
27. At this stage, the reference may be made to the decision of the Andhra Pradesh High Court reported at AIR 1984 AP 176 in the case of Vali Pattabhirama Rao and Anr. v. Shri Ramanuja Ginning and Rice Factory (P) Ltd. and more particularly, the observations made at para 11. While interpreting the provisions of Section 108(j) of the TP Act, it has been held that the permanent lease is also governed by the provisions of the TP Act.
29. The absence of a clause permitting to transfer or sublease is not vital to the applicability of Section 108(j) of TP Act and on the other hand, in absence of a specific condition to the contrary, no consent of the landlord is necessary for assignment and Section 108(j) comes into play. It is observed in the said decision that unless there is covenant restriction for the rights of the lessee to assign his interest, the proviso to Section 108(J) will be attracted. Therefore, in cases of lease governed by the provisions of the TP Act, which would also include for cultivation of the agricultural land, not only the provisions of TP Act as per Section 108(j) would apply, but unless contrary clause is provided, the transferability of such right is to be read by statutory provisions of the TP Act.
30. It was contended on behalf of the State by learned Advocate General Mr. Trivedi that unless and until it is expressly provided in the lease agreement between the landlord and the tenant that the tenant may either cultivate himself or may get the land cultivated through some third party, it cannot be said that the the tenant held a transferable right in the tenancy and therefore, in the submission of the learned Advocate General, the transferability is to be established by express stipulation of the contract of lease and in absence thereof, it can be said that the tenant held no transferable right.
31. In my view, such submission would run counter to the statutory provisions of TP Act and the position as per the provisions of the TP Act and more particularly when Section 108(j) of T.P. Act is otherwise inasmuch unless it is proved to be contrary or unless there is the clause existing in the contract for prohibiting the transfer, such right to transfer would remain and therefore, the said contention of the learned Advocate General cannot be accepted.
32. Such may not be the situation in cases where the tenant has or is to claim the tenancy right as statutory tenant or to say in other words other than contractual tenancy. In the cases of examining the transferability of the rights of the tenant, who has continued to cultivate the land under the protection of any statute prevailing then, it would be required to establish that he is holding a transferable right. Such transferable right as observed earlier, if examined in context to the provisions of the Indian Contract Act, it would not exceed the continuation of the tenancy for the period after the death of the person concerned, but if examined in light of the statutory provision, it may be required for the tenant to establish that such transferability continued to its successor too, keeping in view the rights held by him as statutory tenant of he law prevailing then. It may be that mere cultivation would not be sufficient circumstance, but in such cases, the matter may also be required to be examined for the rights of such statutory tenant. In those cases, the transferability would extend to the continuation of the tenancy to the successor of the tenant by statutory fiction or otherwise.
33. I am inclined to take such view because as per the law prevailing prior to the Act came into force, the statutory tenants were required to cultivate the land themselves only. Therefore, in such cases, the word transferability is to be considered as transferability in succession of the tenancy since as per the Contract Act, the tenancy would have come to an end upon the death of the tenant.
34. It has been submitted on behalf of the petitioners by Mr. Sanjanwala that in all cases the Mamlatdar has rejected the claim made by the petitioner tenants on the ground that the revenue record for the period during which the petitioners had to establish the transferable right in the tenancy as permanent tenant is not available and therefore, he submitted that the approach on the part of the Mamlatdar is improper.
35. The learned Advocate General, Mr. Trivedi was candid in admitting that though the circular of the Government provided for reliance by the Mamlatdar upon the revenue record, but the learned Advocate General could not support the aspects that the existence of the revenue record is not the only material on the basis of which the Mamlatdar can accept the claim of the tenant. It deserves to be observed that the exercise of the power by the Mamlatdar is as a quasi judicial authority and therefore, while examining the claim of the tenant, either as a permanent tenant or as for examining the claim of transferable right, the Mamlatdar has proceeded on the basis of the evidence and material available before him. It may be that the Government has issued instructions that such claim may be examined and may be considered if the revenue record is available for such purpose, but such instructions cannot be said as curtailing the admission of the other evidence if permissible in law. As per the petitioners, the said aspects are not disputed by the respondents that the revenue record is not available for the period during which the petitioners are claiming the right as tenant through their forefathers. In absence of the revenue record, the burden would lie upon the person who claims or asserts that the land was under cultivation by his forefathers during the said period. The degree of proof in the cases where there is non-availability of the revenue record would be more required and the burden would be required to be discharged by the person or the tenant who claims such right and the Mamlatdar will have to examine such evidence with the proper scrutiny. But, thereby, it cannot be said that no other evidence is admissible for examination of the claim by the tenant nor can it be said that if the revenue record is not available, the Mamlatdar would negative the claim even if the other cogent and reliable material is available for establishing the claim of the tenant for cultivation and transferability of the rights.
36. It was submitted by the learned Counsel appearing for the petitioners that in the impugned order, the Mamlatdar has negatived the claim only on the ground of non-availability of the revenue record and he submitted that other evidence were found satisfactory to the Mamlatdar and therefore, this Court may not relegate the matter once again to the Mamlatdar for deciding the very issue and this Court may grant the relief as prayed before the Mamlatdar.
37. In my view, in a petition under Article 227 of the Constitution arising from the order of the quasi judicial authority, unless a very very extraordinary case is made out, in normal circumstances, the writ power would be exercised of undertaking the judicial scrutiny of the order passed by a quasi judicial authority and for laying down the principles, which may be required to be followed by the quasi judicial authority, but as a consequence, the Court would direct the quasi judicial authority to consider the matter afresh in light of the observations made by this Court and would normally not grant the relief as prayed before a quasi judicial authority, unless there is factually no dispute. In the present case, as observed earlier, in absence of the revenue record, though admissibility of the other evidence is not barred, the degree of proof in such cases would be more and such burden will have to be discharged by the tenant for establishing the fact that his forefathers were cultivating the land and had the transferable tenancy. Such is required to be established in absence of the revenue record by cogent and reliable material. In such cases, the Mamlatdar will be required to undertake the appreciation of the evidence with more vigilance, keeping in view the aspects that undue benefit may not be conferred upon any person asserting the right as a tenant by a concocted evidence or a bogus or sham evidence merely because the revenue record is not available or destroyed or not traceable, as the case may be. The perusal of the orders passed by Mamlatdar in all cases show that the evidence is not examined in light of the observations made hereinabove and therefore afresh look and appreciation of the evidence not only may be required by the Mamlatdar, but it may be that the petitioners may decide to lead additional evidence to discharge the burden and to meet with the requisite degree of the proof required for establishing the claim as a tenant. Therefore, considering the facts and circumstances, it would be just and proper to remand the matter to the Mamlatdar for reconsideration in light of the observations made in the present Judgment and the relief prayed by the petitioners for declaration of permanent tenant with a transferable right cannot be granted by this Court.
38. Even otherwise also, the matter in light of the observations made by this Court qua the Government Circular including the Circular dated 07.10.2005 and other aspects also may be required to be examined by the Mamlatdar in light of the observations made by this Court in the Judgment regarding the applicability of the Circular or otherwise or the applicability of the earlier circular. Therefore, the same is an additional ground for not to accept the prayer of the petitioners for declaration as permanent tenant with a transferable right and to direct the matter for reconsideration by the Mamlatdar in light of the observations made in the present Judgment.
39. It was also submitted on behalf of the State Authorities by the learned Advocate General that in the cases where the earlier status of the person was already decided by the Mamlatdar under Section 70 of the Act including that of a transferable right was in existence or not, Section 70(o) cannot be resorted for reopening the very question which came to be concluded by the Mamlatdar in the earlier proceedings. He therefore submitted that under the provisions of the so called power under Section 70(o) of the Act, the Mamlatdar would not assume the jurisdiction to reexamine the very question which earlier came to be concluded in the tenancy proceedings in respect of the concerned tenancy case, whereas it was submitted on behalf of the petitioners by the learned Counsel for the petitioners Mr. Sanjanwala that if the evidence is available in this regard, appropriate application can be made before the Mamlatdar by the tenant concerned and it may not bar the jurisdiction of the Mamlatdar. Further, he submitted that as per the Circular of the Government, such power can be exercised even in cases where tenants have been issued Certificates and therefore, he submitted that the contention raised on behalf of the State Authorities by the learned Advocate General may not be accepted.
29. In my view, in cases where the question of tenancy is already decided, including that of a permanent tenant with transferable right or not at the relevant time when the Mamlatdar had passed the order in tenancy case, unless there are extraordinary facts and circumstances brought to the notice of the Mamlatdar that inspite of due diligence, such aspects could not be brought to the notice of the Mamlatdar by the opponent at the time when the earlier case was conducted, in normal circumstances, the jurisdiction would not be exercised by the Mamlatdar under Section 70(o) of the Act.
30. Further, in cases where the tenancy rights are decided and the tenants were conferred with certificates, but while deciding those cases, the question of permanent tenancy or of a transferability of the right was not decided by the Mamlatdar, the application under Section 70(o) may be entertained by the Mamlatdar and the matter may be examined on the basis of the material available and the evidence on record. Therefore, the jurisdiction may be required to be exercised by the Mamlatdar accordingly in some of the cases which are subject matter of the present group of petitions. At earlier point of time, the Mamlatdar did decide the question of transferability of the tenancy held by the tenant and negatived the same. In those cases, the Mamlatdar will have to examine as to whether the cases of such category would fall in extraordinary category cases for exercise of the power under Section 70(o) of the Act or not and at that stage, it will be for the concerned petitioner/tenant to satisfy the Mamlatdar on the said aspects and if such circumstances as observed hereianbove are demonstrated to the satisfaction of the Mamlatdar, the application under Section 70(o) may be entertained or the power may be exercised and in absence thereof, it would not be proper on the part of the Mamlatdar to exercise the power under Section 70(o) of the Act, since the same may result into frustrating the sanctity of the earlier order which otherwise the aggrieved party may be required to carry before the higher forum in the event such party finds that the exercise of power by the Mamlatdar was not proper on the aspects of permanent tenancy or transferability of the right in tenancy, as the case may be.
31. In view of the aforesaid discussions and observations, the conclusion can be summarised as under:
1. In cases where the adjudication of the rights of the tenant in the land is to take place for the first time by the Mamlatdar & ALT for the purpose of declaration of such person as permanent tenant, the exercise of the power by the Mamlatdar would be under Section 70(b) of the Act and while exercising such power in cases of persons who have been conferred with the status of permanent tenant, the decision taken by the Mamlatdar for transferability of the tenancy in the land shall also be under Section 70(b) of the Act.
2. In cases where the tenancy rights of the tenant are already decided by the Mamlatdar under Section 70(b) of the Act and the tenant is to claim the right as permanent tenant with transferable right, such application can be entertained by the Mamlatdar under Section 70(o) of the Act. However, the exercise of the power under Section 70(o) of the Act by the Mamlatdar in such cases would be in light of the observations made by this Court in the earlier paragraph.
3. While deciding the question of transferability of the tenancy right of a tenant, in case of contractual tenancy, if it is proved that one is a permanent tenant for the requisite period, the transferability of the tenancy rights as per the Transfer of Properties Act would be presumed unless contrary proved by express conditions of the tenancy agreement.
4. In cases of statutory tenant, the transferability will have to be established by the tenant for transferability of tenancy in succession by relying upon the relevant statutory provisions or other materials known to law.
5. While exercising the power under Section 70(o) of the Act for deciding the status of the person as permanent tenant with the transferable right in tenancy or not, the revenue record will be one of the strong documentary evidence but, in absence of the existence of the revenue record, the tenant concerned will have to prove his claim by cogent and reliable material of higher degree to the satisfaction of the Mamlatdar.
6. As per the inbuilt mechanism and the scheme of the Act, Mamlatdar is the first authority to decide the question of rights of the tenant in a land of any category and of the transferability of the tenancy right in the land or not and the Collector is clothed with the revisional jurisdiction against the same and the Tribunal or the State Government, as the case may be, may exercise the further power thereafter, as per the provisions of the Act.
7. In cases where the power is exercised by the Mamlatdar under Section 70(o) of the Act, if the Collector or the State Government, as the case may be, finds that the power is not properly exercised or the legality or propriety of any order passed by the Mamlatdar deserves to be scrutinised further, such can be undertaken under revisional powers, as provided under Section 76A of the Act, either by the Collector suo motu or upon the reference of the State Government, but subject to the outer limit of 1 year as expressly provided by the legislature under Section 76A of the Act.
8. The circular of the State Government dated 07.10.2005 is in conformity with the express basic scheme and mechanism provided under the Act and the circular attempts to nullify the power conferred by the legislature upon the Mamlatdar & ALT for the first instance and the circular is intended to confer the power upon the Collector with the approval of the State Government against the express statutory scheme and mechanism of the Act and hence, the said circular of the State Government is ultra vires to the Act and hence, unconstitutional and void.
9. In view of the above conclusions, the impugned order passed by the Mamlatdar deserves to be quashed and set aside with the directions to the Mamlatdar and ALT to decide all cases afresh after giving opportunity of hearing to all affected parties.
42. Hence, the impugned orders passed by the Mamlatdar are quashed and set aside with the direction to the Mamlatdar to decide all concerned cases afresh after giving opportunity of hearing to all affected parties in light of the observations made and conclusions recorded in the present Judgment. The circular dated 07.10.2005, so far as it relates to the withdrawal of the power of the Mamlatdar under Section 70(o) of the Act and conferring the power upon the Collector to decide the question of transferability of the rights of the tenant or permanent tenant, as the case may be, and to seek prior approval of the State Government etc., as observed earlier, are ultra vires to the Act. As the various other clauses of the circulars are co-united and interconnected, the circular dated 07.10.2005 of the State Government is hereby quashed and set aside.
43. It is expressly made clear that any observations made or conclusion recorded or relief granted in the present group of petitions in the present Judgment will not be treated to re-open any question which is already concluded by the Mamlatdar earlier under Section 70(o) of the Act and for which, no appeal or revision is preferred before any higher forum or is not carried before any higher forum known to law. This Judgment may apply in all cases which are pending or yet to be decided by the Mamlatdar under Section 70(o) of the Act.
44. The petitions are partly allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.
45. In view of the order passed in the main matters, the Civil Applications shall not survive and shall stand disposed of accordingly.