Gujarat High Court
Jitendrabhai Muljibhai Dalwadi S/O ... vs Chhatrasinh Pratapsinh Vaghela Since ... on 4 October, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 263 of 2012
In R/SPECIAL CIVIL APPLICATION NO. 13890 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JITENDRABHAI MULJIBHAI DALWADI S/O MURJIBHAI MATURJI
DALWADI & ORS.
Versus
CHHATRASINH PRATAPSINH VAGHELA SINCE DECD. THROUGH HEIRS
& ORS.
==========================================================
Appearance:
MR. MIHIR THAKORE, SR. ADV. WITH MR. ISA HAKIM WITH MR V B
MALIK(5071) for the Appellant(s) No. 1.1,1.2
MS. HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 2,3
MM BEG(8096) for the Respondent(s) No. 1.1
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 4.1,4.2,4.3,4.4,4.5
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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NEUTRAL CITATION
C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024
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Date : 04/10/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) The instant appeal has arisen out of the judgment and order dated 04.04.2011 passed by the learned single Judge in dismissing the writ petition upholding the order passed by the Mamlatdar & ALT dated 08.07.1997 in Tenancy Case No. 87 of 1996 as also the order passed by the Deputy Collector (LR), Appeals, Vadodara dated 19.12.2003 passed in Tenancy Appeal No. 73 of 2001 and the order passed by the Gujarat Revenue Tribunal (GRT) dated 20.01.2004 in the Revision Application No. 188 of 2004, subject matter of challenge in the instant appeal.
2. The facts noted by the learned single Judge discerned from the record, are that the land bearing Survey No. 816 situated at Gorva, Vadodara, subject matter of consideration in the original writ petition, was mutated in the name of Kushaldas Fulabhai vide Mutation Entry No. 514 dated 01.09.1954 after partition in the year 1954. The name of one Chhatrasinh Pratapsinh was entered in the revenue records as a "protected tenant" being in occupation of the Page 2 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined land-in-question vide Revenue Entry No. 588/38. It seems that vide registered sale deed dated 6.7.1955, the land-in-question was sold by the original landlord, namely Kushaldas Fulabhai and others to one Muljibhai Mathurbhai Dalwadi, the father of the original petitioner. It is the case of the original petitioner that in the Tenancy Case No. 141 of 1995 under the Bombay Tenancy Act' 1948, the tenant, namely Chattrasinh Pratapsinh, father of the original respondent No.1 had foregone his rights and surrendered the tenancy and the possession of the land-in-question was handed over to the original landlord namely, Kushaldas Fulabhai, the predecessor-in-title of the original petitioner.
3. In the year 1996, the proceedings under Section 32G under the Bombay Tenancy and Agricultural Lands Act' 1948, applicable in the State of Gujarat (in short referred to as the 'Tenancy Act, 1948), namely Tenancy Case No. 87 of 1996 was initiated by the heirs of the original tenant namely Chattrasinh Pratapsinh before the Mamlatdar & ALT, Vadodra, wherein the original petitioner and other heirs of the purchaser namely Muljibhai Dalwadi had been joined as party respondents as land owners. Neither the petitioner nor the respondent No.1 (heirs of the tenant) remained present Page 3 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined before the Mamlatdar & ALT and therefore, by the order dated 08.07.1997, the Mamlatdar & ALT had disposed of the said proceedings declaring the sale in favour of the respondent No.1 namely the heirs of the original tenant as ineffective under Section 32G (3) of the Tenancy Act, 1948 and passed an order to dispose of the land-in-question as per the provisions of Section 32P of the Tenancy Act' 1948.
4. After a period of four years, the original petitioner preferred Tenancy Appeal No. 73 of 2001 before the Deputy Collector (LR) Appeals, Vadodara alongwith the application to condone the delay. By the order dated 19.12.2003, the appeal was dismissed on the ground of delay. The Revision before the Gujarat Revenue Tribunal (GRT) was also dismissed vide order dated 20.10.2004. The original petitioner, then preferred Special Civil Application No. 3102 of 2005, which was contested by the respondent No.1 and other heirs of the original tenant Chattrasinh Pratapsinh. This Court while admitting the writ petition passed an interim order directing the parties to maintain the status quo qua the land-in-question.
5. In the meantime, on an application filed by the heirs of the Page 4 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined erstwhile tenant dated 25.05.2004 under Section 32P(2)(c), an order dated 08.02.2005 was passed by the Mamlatdar & ALT disposing of the land-in-question in accordance with the provisions of the aforesaid Section, subject to the restrictions under Section 43 of the Tenancy Act' 1948.
6. It is noted by the learned single Judge that inspite of the order dated 08.02.2005 being in favour of the heirs and legal representatives of the original tenant, the petitioner-heirs and legal representatives of the original land owner won over the surviving heirs of the original tenant namely the respondent No.1 and the settlement was entered into between the original petitioner and the respondent No.1 dated 16.06.2008, wherein the respondent No.1 had submitted that his father Chhatrasinh Pratapsinh Vaghela had already surrendered his tenancy right in the year 1955 and surrendered the possession and since after 01.05.1957, the tenant was not in possession of the land-in-question bearing Survey No.
816. It was stated that all the proceedings initiated by the heirs of the original tenant were farce. Accordingly, the request was made to the learned single Judge permitting the petitioner to withdraw the writ petition namely Special Civil Application No. 3102 of 2005 Page 5 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined and by the order dated 19.06.2008, the said writ petition was dismissed as withdrawn.
7. Thereafter, Misc. Civil Application No. 681 of 2009 was preferred in Special Civil Application No. 3102 of 2005 seeking issuance of necessary directions to the respondent Nos. 2 and 3 namely the Mamlatdar & ALT, Vadodara as well as the Deputy Collector, Vadodara and City Mamlatdar to delete the name of the State Government from the revenue records and enter the name of the applicants as owner and occupier of the land-in-question. The Misc. Civil Application No. 681 of 2009 was, however, dismissed as withdrawn, with a view to file fresh substantial petition, if so advised on the request of the original petitioner.
8. The original petitioner, then, moved the application dated 15.04.2010 before the Mamlatdar & ALT asking him to enter the name of the petitioner pursuant to the order passed by the Special Civil Application No. 3102 of 2005, on the terms of the settlement entered into between the petitioner and the respondent No.1. When nothing was done, the Special Civil Application No. 13890 of 2010 was filed by the petitioner claiming right in the property by Page 6 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined virtue of the sale deed dated 06.07.1955 executed in favour of Muljibhai Mathurbhai Dalwadi. Before the learned single Judge, the learned counsel for the petitioner vehemently argued that in view of the settlement dated 16.06.2008, all the proceedings initiated by the Mamlatdar & ALT in the year 1996 deserve to be quashed and set aside.
9. The learned single Judge considering the settlement in light of the earlier conduct of the parties, more particularly heirs of the original tenant, has noted that in the year 1996, the heirs of the original tenant namely the respondent No.1 therein and others initiated the proceedings under Section 32G of the Tenancy Act being Tenancy Case No. 87 of 1996 to determine the purchase price. Neither the heirs of the original tenant nor the original petitioner remained present and by the order dated 08.07.1997, the Mamlatdar & ALT declared the sale deed in favour of the tenant ineffective under Section 32G(b) and passed the order to dispose of the land-in-question under Section 32P of the Act. This order came to be challenged by the petitioner by way of appeal before the Deputy Collector being Tenancy Appeal No. 73 of 2001, which was dismissed on the ground of limitation. The Revision Application Page 7 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined was also dismissed. It was noted that in the Revision Application, the respondent No.1 and other heirs of the original tenant filed caveat and contested the matter. The Revision was dismissed on merits. Upon dismissal of the Revision, the petitioner filed Special Civil Application No. 3102 of 2005 which was contested by the respondent No.1 and other heirs of the original tenant. The case of heirs of the original tenant was that the original tenant, namely Chattrasinh Pratapsinh Vaghela, had become the deemed purchaser on the tiller's date, i.e. 01.04.1957. After the Special Civil Application No. 2710 of 2005 was admitted and remained pending for three years, settlement dated 16.06.2008 was arrived at between the petitioner and respondent No.1, which is found to be not bona fide and had been entered into to get out of the provisions of the Tenancy Act. It was, thus, held by the learned single Judge that no benefit can be granted to the petitioner relying upon the settlement dated 16.06.2008, which was illegal and arrived at with a view to frustrate the provisions of the Tenancy Act.
10. Even on merits, it was held by the learned single Judge that the order dated 19.12.2003 passed by the Deputy Collector (LR) Appeals, Vadodara and the order passed by the Gujarat Revenue Page 8 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Tribunal dated 20.10.2004 cannot be quashed and no relief can be granted to the petitioner for directing the Mamlatdar to enter the name of the petitioner as owner and occupier of the land-in- question and to delete the entry in favour of the State Government with respect to the order passed under Section 32P of the Bombay Tenancy Act. It was held that by the order dated 08.07.1997, the Mamlatdar & ALT had declared the sale in favour of the tenant ineffective under Section 32G(b) of the Tenancy Act, directing to dispose of the land under Section 32P, which was not challenged by the heirs of the original tenant. The said order has attained finality in so far as the heirs of the tenants are concerned. The Mutation Entry No. 8338 dated 03.07.1999 was made deleting the names of the petitioner and recording the name of the State Government consequent upon the order dated 08.07.1997 passed by the Mamlatdar & ALT showing the entry " Shri sarkar" in Village Form No.12.
11. The order dated 08.07.1997 was, however challenged by the petitioner in the year 2001 by preferring Tenancy Appeal No. 73 of 2001 under Section 74 of the Tenancy Act, which has led to the Page 9 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined first round of litigation before this Court with the filing of Special Civil Application No. 3102 of 2005. Later, the Mamlatdar & ALT passed an order dated 28.02.2005 on the application of the heirs of the original tenant being Tenancy Case No. 476 of 2005 under Section 32P of the Tenancy Act, disposing of the land-in-question subject to the restrictions under Section 43 of the Bombay Tenancy Act. The said order was never challenged by the petitioner herein, though it was brought on record by the respondent No.1 in the affidavit-in-reply filed in Special Civil Application No. 3102 of 2005.
12. It was, thus, held that for the above and with the dismissal of the Special Civil Application No. 3102 of 2005 as withdrawn, both the aforesaid orders having attained finality, no relief can be granted to the petitioner.
13. As regards the other contentions made on behalf of the petitioner that the original tenant did not file any proceedings to restore the possession within a period of two years as required under the provisions of the Bombay Tenancy Act, it was held that the said issue is not subject matter of consideration in the writ petition. Once the land-in-question had already been disposed of Page 10 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined under Section 32P of the Bombay Tenancy Act in favour of the heirs of the original tenant and the said order has attained finality, no relief can be granted to the petitioner. As regards the usage of the land-in-question by the petitioner for manufacturing bricks and the land ceases to be the agricultural land and therefore, the provisions of the Bombay Tenancy Act' 1948 would not be applicable, it was noted by the learned single Judge that no order has been passed by the competent authority granting Non- agricultural use permission. In the year 1976, when the Urban Land Ceiling Act came to be implemented, the petitioner obtained agricultural exemption and got the benefit under the ULC Act treating the land in question as agricultural land. They, therefore, cannot be permitted to turn around and argue that the land-in- question is a Non-agricultural land.
14. Challenging these findings returned by the learned single Judge, it was vehemently argued by Mr. Mihir Thakore, the learned Senior Counsel appearing for the original petitioner namely Jitendranhai Muljibhai Dalwadi (son of Muljibhai Mathurbhai Dalwadi) that the mutation entry in the name of the petitioner was an old entry, about 30 years old. The original tenant or his heirs Page 11 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined are not in possession of the land-in-question since after the year 1956 when the original tenant had surrendered his possession in the presence of the Mamlatdar. In Tenancy Case No. 141 of 1955, the original tenant namely Chatrrasinh Pratapsinh Vaghela had foregone his right in the land-in-question namely the Survey No. 816. The submission is that the land-in-question was sold to the original petitioner vide sale deed dated 06.07.1955 and the entry of the protected tenant was deleted after the tenant had handed over possession of the land-in-question to the original landlord. The mutation entry No. 644 dated 11.09.1955 is proof of the fact of surrender of his interest by the protected tenant namely Chattrasinh Pratapsinh Vaghela in favour of the original landlord Kushal Fulabhai. Since after the years 1955-1956 till 1964-1965, the land bearing Survey No. 816 was utilised for running brick-kin by Muljibhai Mathurbhai Dalwadi, the purchaser, namely the predecessor-in-interest of the original petitioner. From the years 1965-66 to 1981-82, the land remained unutilised. The mutation entry in the name of heirs and legal representatives of Muljibhai Mathurbhai Dalwadi namely the original petitioner and other heirs namely Mutation Entry No. 2665 was made on 14.06.1974 in Page 12 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined respect of the land bearing Survey No. 816 and the said mutation entry was approved on 31.07.1974 itslef.
15. It was, thus, argued that after 41 years of the surrender of all the rights of the original tenant in Tenancy Case No. 141/1955, by suppression of material facts, the Tenancy Case No. 87 of 1996 was filed by the heirs of the original tenant. The proceedings, thereafter, had been culminated with the settlement dated 16.06.2008 arrived at between the parties before this Court and the original petitioner was permitted to withdraw the Special Civil Application No. 3102 of 2005 on the basis of the said settlement.
16. However, in the revenue record, the land-in-question was still shown as the government land and hence the petitioner was constrained to move an application dated 15.04.2010 for correction of the revenue records. In the meantime, the land-in-question became part of the Town Planning scheme and the Town Planning Authority had also sought contribution from the petitioner.
17. It is further submitted that even in the proceedings before the writ court in Special Civil Application No. 13890 of 2010, out Page 13 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined of which the present appeal has arisen, this Court vide order dated 16.11.2010 had required the heirs of the original tenant namely Chandubhai Chatrasinh Vaghela to remain present before the Court in person, as the Court wanted to ascertain as to under what circumstances the compromise was entered into. On 15.12.2010, Chandubhai Chhatrasinh Vaghela remained present and was asked by the Court to file affidavit explaining reason for signing the terms by 16.12.2010. The order dated 16.12.2010, at page '150' of the paper book, has been placed before us to submit that the affidavit was filed by Chandubhai, which was noted in the order and further a perusal of the copy of the affidavit indicates that he made a statement that all claims were settled in the Tenancy Case No. 141 of 1995 and that the affidavit filed in that regard, was not filed under any compulsion, and all proceedings were initiated at the instigation of his neighbors. On 16.12.2010, this Court directed the affidavit to be served upon the learned Government Pleader to take instructions and the matter was, thereafter, posted in the list.
18. On 18.03.2011, the petitioner filed affidavit with respect to the proceedings under the Tenancy Act as well as the Town Page 14 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Planning Act and the material on record would establish that the petitioner was in the possession throughout of the land-in-question. The submission, thus, is that the dismissal of the writ petition on the ground that the petitioner and the heirs of the original tenant had joined hands with a view to frustrate the provisions of the Tenancy Act by the learned single Judge, is going beyond the material on record.
19. It was submitted that another group of new persons have been impleaded in this appeal as respondent Nos. 4/1 to 4/5 under the order dated 24.10.2013 passed by this Court in the Civil Application filed by them for joining party, though they have no locus to participate the proceedings of appeal, which has arisen out of the writ petition challenging the order passed by the GRT, which have been passed in the proceedings between the original petitioner and the respondent No.1 and other heirs of the original tenant.
20. It is further submitted that the newly impleaded respondent Nos. 4.1 to 4.5 have put up their claim in respect to the land bearing survey No. 819 and 820 in the Special Civil Application No. 6599 of 2012 challenging the order passed by the GRT dated Page 15 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined 27.03.2012 and the said writ petition was disposed of as withdrawn vide order dated 15.06.2012 (at page No. 170 of the paperbook).
21. It was, thus, submitted by the learned Senior Counsel that, in any case, the petitioner's settled possession over the land-in- question cannot be disturbed on the basis of any order passed by the Mamlatdar & ALT for the fact that the original tenant having surrendered his right of tenancy in the land-in-question, his heirs cannot seek any relief. The orders passed by the Mamlatdar, Deputy Collector and the GRT are, thus, liable to be set aside. The name of the petitioner is required to be entered in the revenue record by deleting of the entry reflecting the name of the State Government.
22. Mr. M.M.Beg, the learned advocate appearing for the respondent No.1.1 and Mr. P.Y. Divyeshwar, the learned advocate appearing for the respondent Nos. 4.1 to 4.5, as also Ms. Hetal Patel, the learned Assistant Government Pleader, appearing for the State Government, however, made their submissions, in rebuttal, based on the decision of the learned single Judge and defended the order of the learned single Judge on the reasoning given therein Page 16 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined submitting that no interference may be made.
23. Having heard the learned counsels for the parties and perused the record, pertinent is to note that there is no dispute about the fact that there was a 'protected tenant' in the land-in-question namely Chattrasinh Pratapsinh Vaghela, whose name was duly entered in the revenue record vide Entry No. 588/38 as a 'protected tenant' with respect to various lands including the land bearing Survey No. 816. The said undisputed revenue entry can be seen in the papers appended at page No. '16' of the paper-book. However, it seems that another revenue entry bearing No. 640 dated 18.08.1955 was entered on the basis of the sale deed dated 6.7.1955 in the name of Muljibhai Mathurbhai Dalvadi, the predecessor-in-interest of the original petitioner stating that the land-in-question was sold to him vide registered sale deed by the original landlord. The result is that the predecessor-in-interest of the petitioner had purchased the land-in-question with the sitting tenant who was the 'protected tenant' under the Tenancy Act, 1948. The 3rd Mutation Entry No.644 dated 11.09.1955 was entered recording that in Tenancy Case No. 141/55, the original tenant Page 17 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined namely Chattrasinh Pratapsinh Vaghela had surrendered his interest and handed over the land-in-question to the original landlord namely Kushal Fulabhai. It is brought on record of the writ petition that the original record of the Tenancy Case No. 141/55 is not traceable and it is evident from the reply dated 31.01.1997 given by the Mamlatdar & ALT, Vadodara to the Advocate of the appellants. However, from a perusal of the Revenue Entry at page No. '16' of the paperbook at least it is clear that on the date of the alleged surrender, i.e. 11.09.1955, the original landlord namely Kushal Fulabhai had parted away with his right in the land-in- question by execution of the sale deed dated 06.07.1955 in favour of the predecessor-in-title of the petitioner. There is a serious doubt about the Entry No. 644 of the surrender of possession by the original tenant in Tenancy Case No. 141/1955 in favour of the original landlord.
24. Coming to the Tenancy Act, 1948, we may go through the provisions of Chapter-III, which contain the provisions pertaining to 'Special Rights and Privileges of Tenants and Provisions for Distribution of Land for Personal Cultivation'. Section 31 provides Page 18 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined for the right of the landlord (not being a landlord within the meaning of Chapter III-AA) subject to the provisions of Section 31A to 31 (both inclusive), after giving notice and making application for possession as per sub-section(2) of Section 31, to terminate the tenancy of any land (except a permanent tenancy), if landlord bona fide requires the land for the purposes for personal cultivation or for any non-agricultural purposes.
24.1 Section 31A provides for the conditions subject to which the right of the landlord to terminate the tenancy for cultivating the land personally under Section 31 could be exercised. 24.2 Section 32 contained in the same Chapter further provides that every tenant on the tiller's day, which is 1.4.1957, subject to the provisions of the next succeeding sections, be deemed to have purchased the land from his landlord free from all encumbrances subsisting thereon on the said date and shall hold the land as a tenant, if:-
(a) such tenant is a permanent tenant thereof and cultivates land personally;Page 19 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined
(b) such tenant is not a permanent tenant but cultivates the land leased personally; and
(i) the landlord has not given notice of termination of his tenancy under Section 31; or
(ii) notice has been given under Section 31, but the landlord has not applied to the Mamlatdar, on or before the 31st day of March 1957 under section 29 for obtaining possession of the land and
(iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under Section 29 for obtaining possession of the land. 24.3 The first proviso to sub-section (1) of Section 32 further states that if an application made by the landlord under Section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the Tenancy Act, the tenant shall be deemed to have purchased the land on the date when the final Page 20 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined order of rejection is passed. The date on which the final order of rejection is passed, shall be referred as 'the postponed date'.
25. Section 32(1A) (a) & (b) further read as under :-
"32(1A) (a) Where a tenant, on account of his eviction from the land by the landlord, before the 1st day of April, 1957, is not in possession of the land on the said date but has made or makes an application for possession of the land under sub-section (1) of section 29 within the period specified in that sub-section, then if the application is allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the Gujarat Revenue Tribunal, he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed.
(b) Where such tenant has not made an application for possession within the period specified in sub-section (1) of section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or as the case may be, on date of the final rejection of the application."
26. Section 32(1B) is relevant for our purposes, which reads as under :-
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NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined "32(1B) Where a tenant who was in possession of land on the appointed day and who, on account of his being dispossessed of such land or any part there of by the landlord at any time before the specified date otherwise than in the manner provided in section 29 or any other provision of this Act is not in possession of such and or any part there of and such land or part thereof is in the possession of the landlord or his successor-in-interest on the said date and such land or part there of is not put to nonagricultural use on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section 29 or any other provision of thisAct eithersuo motu or on an application of the tenant made within the prescribed period hold an inquiry and direct that such land or as the case may be, part thereof shall be taken from the possessiom of the landlord or, as the case may be, his successor in interest, and shall be restored, to as the tenant;
and thereafter, the provisions of this section and sections 32A to 32R (both inclusive) shall, so far as they may be applicable, apply there to, subject to the modification that the tenant shall be deemed to have purchased such land or part there of on the date on which such land or, as the case may be, part there of is restored to him:
Provided that the tenant shall be entitled to restoration of land or part there of, as the case may be, under this sub-section only if he gives an undertaking in writing within such period as may be prescribed to cultivate it personally and of so much there of as together with the other land held by him as owner or tenant shall not exceed the ceiling area:Page 22 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Provided further that-
(i) if the tenant fails to give such undertaking within such prescribed period, or if the tenant, after giving such undertaking refuses to accept the tenancy or possession of the lands, the land the possession of which the land-lord or, as the case may be, his successor-in-interests is not entitled to retain under this sub-section;
or
(ii) if the tenant gives such undertaking and accepts such tenancy or possession of the land, such portion of the land referred to in clause (i) to the restoration of which the tenant would not be entitled under the first proviso, shall vest in the State Government free from all encumbrances, and shall be disposed of in the manner provided in sub-section (2) of section 32P Explanation.- In this sub-section "successor in interest" means a person who acquires the interest by testamentary disposition or devolution on death."
27. A careful reading of Section 32(1A) (a) & (b) indicates that a tenant on his eviction from the land by the landlord before 1.4.1957, i.e. the tiller day, if not in possession on the said date, may make an application for possession under sub-section(1) of Section 29 within the period specified therein and if such application is allowed finally, the tenant shall be deemed to have purchased the land on the date on which the final order allowing Page 23 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined the application is passed. Clause (b) of sub-section (1A), however, provides that in case the tenant has not made any application and the land is held by any other person as a tenant on the expiry of the period prescribed in sub-section(1) of Section 29, or the application moved by the tenant is finally rejected under the Tenancy Act, the person holding the land-in-question as tenant shall be deemed to have purchased the land on the date of expiry of the said period or on the date of final rejection of the application.
28. Sub-section(1B) of Section 32 came to the rescue of the tenant who has been illegally dispossessed by the landlord and confers powers upon the Mamlatdar either suo motu or on the application made by the tenant who was in the possession of the land-in- question on the appointed day [which is 15.06.1955, a per Section 2(2B)] and who has been dispossessed by the landlord at any point of time before the specified date [01.04.1957 as per Section 2(16C)], i.e. between 15.06.1955 and 1.4.1957, otherwise than in the manner provided under Section 29 or any other provisions of the Tenancy Act, to restore the land to the tenant and the tenant shall be deemed to have purchased the land on the date on which such Page 24 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined land was restored to him. The tenant shall be entitled to restoration subject to an undertaking in writing that he will cultivate the land personally. In a case, where the tenant fails to give such an undertaking within the prescribed period or if the tenant after giving such undertaking, refuses to accept the tenancy or possession of the land, the land the possession of which is with the landlord or his successor-in-interest as the case may be, will not be entitled to retain the possession under sub-section (1B) and the land shall vest in the State Government free from all encumbrances and shall be disposed of in the manner provided in sub-section (2) of Section 32P.
29. Sub-section(3) of Section 32 further states as under :-
"In respect of the land deemed to have been purchased by a tenant under subsection (1),-
(a)the tenant shall continue to be liable to pay to the landlord the rent of such land, and
(b)the landlord shall continue to be liable to pay to the State Government the dues, if any, referred to in clauses (a), (b), (c) and
(d) of sub-section (1) of section 10A, where the tenant is not liable to pay such dues under subsection (3) of that section Page 25 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined until the amount of the purchase price payable by the tenant to the landlord is determined under section 32H."
30. Section 32H reads as under :-
"Purchase price and its maxima.
(1) Subject to the additions and deductions as provided in, sub-
sections (1A) and (IB), the purchase price shall be reckoned as follows namely:-
(i)in the case of a permanent tenant who is cultivating the land personally the purchase price shall be the aggregate of the following amounts, that is to say,-
(a)an amount equal to six times the rent of the land;
(b)the amount of the arrears of rent, if any, lawfully due on the tiller's day or the postponed date;
(c)the amounts, if any, paid by or recovered from the landlord as land revenue and cesses referred to in clauses (a), (b) (c) and (d) of subsection (1) of section 10A, in the event of the failure on the part of the tenant to pay the same;
(ii)in the case of other tenants, the purchase price shall be the aggregate of the following amounts that is to say,-
(a)such amount as the Tribunal may determine not being less than 20 times the assessment and not more than 200 times the assessment.
(b)the value of any structures, wells and embankments constructed and other permanent fixtures made and trees planted by the landlord on the land;
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(c)the amount of the arrears of rent, if any, lawfully, due on the tillers' day or the postponed date;(d)the amounts, if any, paid by or recovered from the landlord as land revenue and other cesses referred to in clauses (a), (b), (c) and
(d) of sub-section (1) of section 10A, in the event of the failure on the part of the tenant to pay the same.
[Explanation 1:- For the purposes of calculating the price under this sub-section, the amount of water rate, if any, levied under section 55 of the Bombay Land Revenue Code, 1879 (Bombay V of 1879), and included in such assessment, shall be excluded. Explanation 2:- For the purposes of this sub-section, the expression "assessment" shall have the meaning assigned to it in section 8. (1A) Where a tenant to whom sub-sections (1) and (2) of section 10A do not apply, has, after the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 (Bombay XIII of 1955), paid in respect of the land held by him as tenant land revenue and other cesses referred to in sub-section (1) of that section, on account of the failure of the landlord to pay the same, a sum equal to the total amount so paid by the tenant until the date of the determination of the purchase price shall be deducted from the aggregate of the amounts determined under sub-section (1).
(1B)(a) On the amount arrived at in accordance with the provisions of sub-sections (1) and (1A) there shall be calculated interest at 4½ per cent, per annum for the period between the date on which the tenant is deemed to have purchased the land under section 32 and the date of the determination of the purchase price. Page 27 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
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(b)(i)The amount of interest to calculated shall be added to, and
(ii)the amount of rent, if any, paid, by the tenant to the landlord and the value of an products of trees planted by the landlord if such products are removed by the landlord during the said period shall be deducted from, the amount so arrived at.] (2)The State Government may, by general or special order, fix different minima and maxima for the purpose of sub-clause (a) of clause (ii) of sub-section (1) in respect of any kind of land held by tenants in any backward area. In fixing such minima and maxima, the State Government shall have regard to the rent payable for the land and the factors specified in sub-section (3) of section 63A."
31. Section 32G and 32P are also relevant to be noted hereinunder :-
"32G. Tribunal to issue notice and determine price of land to be paid by tenants. (1) As soon as may be after the tillers' day the Tribunal shall publish or cause to be published a public notice in the prescribed from in each village within its jurisdiction calling upon-
(a)all tenants who under section 32 are deemed to have purchased the lands,
(b)all landlords of such lands, and
(c)all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear Page 28 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined before it on the date specified in the public notice.
(2)The Tribunal shall record in the prescribed manner the statement of the tenant whether he is not willing to purchase the land held by him as a tenant.
(3)Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective:Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.
(4)If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32H and of sub-section (3) of section 63A:
[Provided that where the purchase price in accordance with the provisions of section 32H is naturally agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenant's consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement.
(5)In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be, after such date determine the price of the land.
(6)If any land which, by or under the provisions of any of the Page 29 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of regrant."
**** "32P. Power of Collector to resume and dispose of land not purchased by tenant and appeal against Collector's order. (1)Where the purchase of any land by tenant under section 32 becomes ineffective [under the foregoing provisions of this sub- chapter or where the tenant fails to exercise the right to purchase land under section 43-ID within the period specified in that section the Collector may suo motu or on an application made in this behalf and after holding a formal inquiry direct that the land shall be disposed of in the manner provided in sub-section (2).(2)[Such direction shall, subject to the [provisions of sub-sections (2AA) and (2A)], provided
-(a)that the tenancy in respect of the shall be terminated and the tenant be summarily evicted
(b) ...deleted...
(c) that the entire land or such portion thereof, as the case may be, notwithstanding that it is a fragment, [shall subject to the terms and conditions as may be specified in the direction be disposed of by sale to person in the following order of priority Page 30 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined (hereinafter called "the priority list") :-
and conditions as may be specified in the direction be disposed of by sale] to person in the following order of priority (hereinafter called "the priority list"):-
(a-i) the tenant whose tenancy in respect of that land is terminated if such tenant is willing to accept the offer of sale, provided the occasion for the issue of such direction has not arisen by reason of an act of collusion between such tenant and the landlord
(i) a co-operative farming society, the members of which are agricultural labourers, landless persons or small holders or a combination of such persons;(ii)agricultural labourers;
(iii)landless persons;
(iv)small holders;
(v)a co-operative farming society of agriculturists (other than small holders) who hold either as owner or tenant or partly as owner and partly as tenant, land less in area than an economic holding and who are artisans:
(vi)an agriculturist (other than a small holder) who holds either as owner or tenant or partly owner and partly as tenant, land les in area than an economic holding and who is an artisan;
(vii)an other co-operative farming society;
(viii)any agriculturist who holds either as owner or tenant or partly as owner and partly as tenant land larger in area than an economic holding but less in area than the ceiling area;
(ix)any person not being an agriculturist, who intends to take to the profession of agriculture:Page 31 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Provided that the State Government may, by notification in the Official Gazette, give, in relation to such local areas as it may specify, such priority in the above order as it thinks fit to any class of persons who, by reason of the acquisition of their land for any development project approved for the purpose by the State Government, have been displaced, and require to be re-settled;
Provided further that-
(a)where there are two or more co-operative farming societies falling under item, (i), (v) or (vii), preference amongst them shall be given in the following order, namely:-
(1)a co-operative farming society each of the members of which belongs to a Scheduled Tribe;
(2)a co-operative farming society the membership of which is held partly by persons belonging to a Schedule Tribal and partly by persons belonging to a Schedule Caste;
(3)a co-operative farming society each of the members of which belongs to a Scheduled caste;
(4)a co-operative farming society the membership of which is not solely held by persons belonging to a Schedule Tribe or Schedule Caste;
(b)in the case of persons falling under items (ii), (iii) and (iv) preference shall be given in the following order, namely:-
(1)a person belonging to a Schedule Tribe;
(2)a person belonging to a Schedule Caste;
(3)other persons.
(2AA) Where in any case the direction under sub-section (2) Page 32 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined provides that the land in respect of which the tenancy is terminated shall be disposed of by sale to the tenant referred to in sub-clause (a-I) of clause (c) of sub-section (2), the tenant shall be liable to be evicted only if the land or, as the case may be, the portion thereof could not be disposed of by sale to him.
(2A) Where the tenancy in respect of any land is terminated under clause (a) of subsection (2) but the tenant of such land is a co-
operative farming society of the type referred to in sub-clause (i) of clause (c) of sub-section (2), the direction under subsection, the direction under sub-section (2) shall further provide-
(i)that [***] the entire land or such portion thereof, as the case may be, shall be disposed of by sale to the co-operative farming society which was the tenant of the land or as the case may be, portion thereof immediately before the termination of the tenancy under clause (a) of subsection (2).
Provided that the total acreage of the land to be so disposed of shall not exceed an area arrived at by multiplying the ceiling area by the total number of the members of the co-operative farming society;
(ii)that on he termination of the tenancy under clause (a) of sub- section (2), the co-operative farming society shall be liable to be evicted only from such portion of the land as could not be disposed of by sale to it under a direction issued under sub-section (2).][***] (4) Where the land or portion thereof is offered for sale under sub- section (2) but no person comes forward to purchase such land or portion, such land or portion, as the case may be, shall vest in the Page 33 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined State Government and the Collector shall determine the price of such land or portion in accordance with the provisions of section 63A and the amount of the price so determined shall, subject to the provisions of section 32Q, be paid to the owner thereof. (5)Where any land is sold under sub-section (2), the Collector shall determine the price of the land in accordance with the provisions of section 63A and the price so determined shall be payable by annual instalments not exceeding six with simple interest at the rate of 4½ per cent, per annum as the Collector may determine and the price of the land recovered from the purchaser shall, subject to the provisions of section 32Q, be paid to the owner thereof.
(6) On the payment of the last instalment of the price, together wit the interest due, the Collector shall issue a certificate of purchase in the prescribed form to the purchaser in respect of the land. Such certificate shall be conclusive evidence of purchase. (7)(a) Where before the specified date, any land has been surrendered to a landlord under sub-section (2) of this section as in force immediately before such date; and the landlord has taken possession of the land, the landlord shall be liable to cultivate the land personally and shall be entitled to the use and occupation of the land so long as he cultivates the land personally.
(b)If he fails to so cultivate the land he shall be evicted from the land and the land shall be disposed of in accordance with the provisions of section 84C.
(8) No land of the description referred to in sub-section (7) shall be transferred by sale, gift, exchange, mortgage, lease, or assignment or partitioned without the previous sanction of the Page 34 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Collector and except on payment of such amount as the State Government may by general or special order determine. (9)Any person aggrieved by any order made by the Collector under the foregoing provisions of this section may appeal to the State Government against such order.
(10)The State Government shall after giving an opportunity to the parties to be heard, decide the appeal.
(11)The order of the Collector, subject to such appeal and decision of the State Government on appeal, shall be final]
32. Section 3A and Section 4 of the Bombay Tenancy Act' 1948 is quoted hereinunder for ready reference :-
"3A. (1) Every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant.
(2) Where an application under sub-section(1) has been made and the Mamlatdar refuses to make such declaration and the Mamlatdar's decision is not set aside by the Collector in appeal under sub-section (3) of Section 13 or by the Provincial Government under section 28, the tenant shall be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights."Page 35 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined ***** "4(1) Every tenant shall be deemed to be a protected tenant for the purposes of this Act, if he-
(a) held any land and cultivated it personally continuously for a period of not less than six years immediately preceding the first day of April, 1937 and was evicted from such land on or after such date otherwise than by order of a competent court on any of the grounds specified in sub-section(2) of section 5, or
(b) held any land and cultivated it personally continuously for a period of not less than six years immediately preceding the first day of April, 1944 and was evicted from such land on or after such date otherwise than by order of a competent court on any of the grounds specified in sub-section (2) of section 5. Provided that any tenant who has been evicted from the land in consequence of his failure to tender the rent referred to in section 9 of the Bombay Small Holders Relief Act, 1938, as provided therein, shall not be deemed to be a protected tenant for the purposes of this Act, unless he pays to the landlord such rent in cases falling under clause (a) within four months from the date on which this section comes into force in the area in which the land is situated and in cases falling under clause (b) within six months from the date on which the Bombay Tenancy (Amendment) Act, 1946, comes into force.
(2) A person who is deemed to be a protected tenant under sub- section(1) shall, if he intimates in writing to the landlord in cases falling under clause (a) of sub-section(1) within one year after the coming into force of this section in the area in which the land is situated and in cases falling under clause (b) of sub-section(1) Page 36 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined within one year after the coming into force of the Bombay Tenancy (Amendment) Act, 1946, that he is willing to hold the land on the same terms and conditions on which he held it at the time when he was evicted, be entitled to recover the possession of the land-
(a) in cases falling under clause (a) of sub-section (1)-
(i) if the land has been leased out by the landlord for a period expiring after the 31st day of May immediately following the date of the coming into force of this section in the area in which the land is situated, from the date on which such lease expires; and
(ii) in other cases, from the 1 st day of June immediately following the date of the coming into force of this section in the area in which the land is situated ;
(b) in cases falling under clause (b) of sub-section (1) -
(i) if the land has been leased out by the landlord for a period expiring after the 31st day of May immediately following the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, from the date on which such lease expires; and
(ii) in other cases from the 1 st day of June immediately following the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946.
And on so recovering possession, he shall, subject to the provisions of this Act, hold the land on the said terms and conditions. (3) The provisions of this section shall not apply in cases where the landlord is using the land for any of the purposes mentioned in sub-section (1) of section 7."
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33. From a careful reading of the aforesaid provisions contained in Chapter-III under the head "Special Rights and Privileges of Tenants and Provisions for Distribution of Land for Personal Cultivation" and Section 3A and 4 of the Tenancy Act, , it is evident that it is the duty of the Mamlatdar to restore the possession to the tenant who was in the possession of the land on the appointed date, i.e. 15.06.1955 and has been dispossessed by the landlord at any time before 1.4.1957, i.e. the specified date (tiller day), otherwise than in the manner provided under the Tenancy Act, 1948, when the said land is in possession of the landlord or his successor-in-interest on the said date and has not been put to Non-agricultural use on or before the specified date, i.e. 01.04.1957.
34. On the tiller's day, i.e. 1.4.1957, every tenant shall be deemed to have purchased the land from his landlord free from all encumbrances subsisting thereon on the date, if the tenant is a permanent tenant or if not a permanent tenant, but cultivates the land leased personally and his tenancy had not been terminated in accordance with the provisions of Section 31 or Section 29. Page 38 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
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35. In the instant case, as per own admission of the petitioner, the original tenant was a 'protected tenant' and was in the possession of the land-in-question on the appointed day, i.e. 15.6.1955. The tenant was dispossessed on 11.09.1955 on the premise that he had surrendered his tenancy in Tenancy Case No. 141 of 1955, the original record of which is not available. The Entry No. 644 dated 11.09.1955 of the surrender of interest of the tenancy in favour of the original landlord namely Kushal Fulabhai is not substantiated from the record. The original landlord had parted away his possession in the land-in-question and the transferee of the original landlord, in any case, would not acquire any right or interest in the property. The reason is that the original landlord of the land-in-question had not terminated the tenancy in accordance with the provisions of Section 31 and has not obtained possession under Section 29 of the Tenancy Act, 1948 on or before 31.3.1957. The tenant was, thus, entitled to restoration of possession by virtue of sub-section(1B) of Section 32 of the Tenancy Act, 1948. There is no material on record except the Mutation Entry No. 644 dated 11.09.1955 to prove that the original tenant had surrendered the land-in-question in favour of the original landlord, that too after Page 39 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined execution of the sale deed by the original landlord in favour of a third party when the landlord had parted away his right in the property.
36. There is no dispute about the fact that the original tenant was a 'protected tenant' within the meaning of sub-section 2(14) recognised as such under Section 4A of the Tenancy Act, 1948. His tenancy, as such, could not have been terminated except in accordance with the provisions of the Tenancy Act, 1948, particulary as per the provisions contained in Section 31, and the possession of the land from the 'protected tenant' could not have been obtained except as per the procedure provided under Section
29. In so far as the original petitioner herein is concerned, he seeks right from the purchaser of the sale deed dated 6.7.1955 in whose favour admittedly there has been no surrender. The Entry of the surrender by the tenant namely the Mutation Entry No. 644 dated 11.09.1955, therefore, is not worthy of credence and would not confer any right in favour of the purchaser namely the predecessor- in-interest of the original petitioner herein. Page 40 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
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37. Further, in Tenancy Case No. 87 of 1996 filed by the heirs of the original tenant, tried between the heirs and original tenant and the original petitioner and other heirs of Muljibhai Mathurbhai Dalwadi, no one had put in appearance and noticing that none of the parties were having intention to proceed with the case, it was held by the Mamlatdar & ALT by order dated 08.07.1997 that there was no question of determining the purchase value of the land and the purchase was held ineffective as per Section 32G(3) of the Tenancy Act, 1948. Further it was held that the land-in-question is required to be disposed of as per Section 32P after the lapse of the period for filing an appeal. The heirs of original tenant namely Chandubhai Chatrasinh Vaghela namely the respondent No.1 and other heirs though had preferred Tenancy Appeal No. 31 of 1997, but the same was withdrawn. Resultantly, Mutation Entry No. 8338 dated 03.07.1999 was entered deleting the name of the original petitioner and others for recording the name of the State Government consequent to the order dated 8.7.1997, in Village Form No. 7/12 showing Entry of 'Shri Sarkar'.
38. After about a period of three years, the original petitioner Page 41 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined challenged the order dated 8.7.1997 by preferring the Tenancy Appeal No. 73 of 2001, while seeking condonation of delay, which has been rejected on the ground of delay vide order dated 19.12.2003. The Revision was also dismissed by the order dated 20.01.2004 by the Gujarat Revenue Tribunal. Being aggrieved by the orders dated 8.7.1997, 19.12.2003 and 20.01.2004 arising out of the Tenancy Case No. 87 of 1996, holding the sale as ineffective and entering the name of the State Government, Special Civil Application No. 3102 of 2005 was filed by the petitioner, which was disposed of as withdrawn by order dated 19.06.2008 in the following manner :-
"Mr.Chinmay M.Gandhi, learned advocate for Mr.M.B.Gandhi, learned counsel for the petitioners, has submitted the terms of settlement dated 16.6.2008 entered into between the petitioners, namely (i) Jitendra Muljibhai Dalwadi, (ii) Narendra Muljibhai Dalwadi, (iii) Vishnubhai Muljibhai Dalwadi, (iv) Smt.Madhuben D/ o. Muljibhai Dalwadi, (v) Smt.Hansaben D/o. Muljibhai Dalwadi and (vi) Smt.Pushpaben D/o. Muljibhai Dalwadi, and the respondent No.1, namely Chandubhai Chatrasinh Vaghela, who is the heir and legal representative of deceased Chatrasinh Pratapsinh Vaghela. Smt.Dariben Wd/o. Chatrasinh Vaghela and Mehboobsinh Chatrasinh Vaghela have expired during the pendency of the proceedings. The petitioners Nos.1 and 2, namely, Shri Jitendra Page 42 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Muljibhai Dalwadi and Shri Narendra Muljibhai Dalwadi, who are the Power of Attorney holders for the petitioners Nos.3 to 6, are personally present in the Court, as is Shri Chandubhai Chatrasinh Vaghela, the respondent No.1 herein.
The terms of settlement submitted by the learned counsel for the petitioners is taken on the record of the case.
On instructions from the petitioners Nos.1 and 2, who are present in the Court today, it is represented by Mr.Chinmay M.Gandhi, learned counsel for the petitioners that in view of the settlement arrived at between the petitioners as well as the respondent No.1, he may be permitted to withdraw the writ petition.
The permission, as prayed for, is granted. The writ petition is disposed of as withdrawn. Rule is discharged. There shall be no orders as to costs. "
39. The contention of the learned senior counsel for the petitioner is that the settlement arrived at between the parties during the pendency of the Special Civil Application No. 3102 of 2005 with the admission of the heirs of the original tenant that the original tenant had already surrendered the tenancy rights recorded in the Mutation Entry No. 644 dated 11.09.1955, the dispute, if any, had been brought to its logical end. In view of the withdrawal of the Page 43 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined writ petition (Special Civil Application No. 3102 of 2005) by the judgment and order dated 19.06.2008 passed in light of the settlement signed by the parties namely the petitioner and the respondent No.1 dated 16.06.2008, no exception could have been taken by the learned single Judge to the prayers made by the petitioner in the writ petition in the judgment impugned.
40. Dealing with this submission, suffice it to note that once the name of the State Government had been entered in the Revenue Records by Mutation Entry No. 8338 dated 3.7.1999 as a result of the order dated 8.7.1997 holding the sale as ineffective under Section 32G (3) of the Tenancy Act, 1948, the provisions of Section 32P would come into play. Resuntantly, the entry made in the name of the State Government in view of Section 32P cannot be deleted on the basis of any compromise arrived between the heirs of the tenant and the original petitioner who claim that his predecessors had purchased the right in the land-in-question by the sale deed executed by the original landlord with the sitting tenant, who was a 'protected tenant' within the meaning of the Tenancy Act, 1948.
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NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined
41. The result of the dismissal of the writ petition as withdrawn vide judgment and order dated 19.06.2008 would be that the order dated 08.07.1997 passed by the Mamlatdar & ALT in Tenancy Case No. 87 of 1996 for making the sale ineffective and holding that the land-in-question shall be disposed of under Section 32P of the Tenancy Act after expiry of time provided for filling of the appeal, had attained finality. Any compromise between the heirs of the tenant and the petitioner would have no bearing on the order dated 8.7.1997 passed in Tenancy Case No. 87 of 1996.
42. However, the matter did not rest there. The original petitioner had succeeded in getting the order dated 18.03.2010 in Misc. Civil Application No.681 of 2009 filed in Special Civil Application No. 3102 of 2005 to the effect that the application stood dismissed as withdrawn with a view to file a fresh substantive petition, if so advised. In our considered view, the dismissal of the Misc. Civil Application No. 681 of 2009 vide judgment and order dated 18.03.2010 would not amount to modifying the judgment and order dated 19.06.2008 passed in the Special Civil Application No. 3102 of 2005, which was disposed of as withdrawn even though in Page 45 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined view of the settlement arrived at between the heirs of the original tenant and the petitioner herein.
43. The fact remains that the dismissal of the Special Civil Application No. 3102 of 2005 vide judgment and order dated 19.06.2008 had resulted in attaching finality to the order dated 08.07.1997 passed by the Mamlatdar in Tenancy Case No. 87 of 1996. The second round of litigation brought before this Court vide Special Civil Application No. 13890 of 2010, out of which the instant appeal has arisen, was an effort to revive the challenge to the orders passed in the proceedings in Tenancy Case No. 87 of 1996 finalised with the dismissal of the Revision Application No. 188 of 2004 vide order dated 20.10.2004 passed by the GRT.
44. At the cost of repetition, it is reiterated that with the dismissal of the Tenancy Appeal No. 73 of 2001 filed by the petitioner, the order dated 8.7.1997 passed in Tenancy Case No. 87 of 1996 has attained finality. After the entry of the name of the State Government in the revenue records on expiry of the the period provided for filling the appeal, no compromise between two sets of the private parties would result into the setting aside of the Page 46 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined order dated 8.7.1997. The writ petition challenging the orders passed in Tenancy Case No. 87 of 1996 had not been decided on merits.
45. In view of the above discussions, the interim orders dated 16.11.2010 and 16.12.2010 passed by the learned single judge in the original writ petition, out of which the instant appeal has arisen, about verification or the affirmation of the compromise or statement made by the heirs of the original tenant, would have no bearing on the merits of the case. The learned single Judge, thus, cannot be said to have committed any error in holding that even on merits the orders passed in the Tenancy Case no. 87 of 1996 dated 8.7.1997 and of rejection of the appeal and revision by the Deputy Collector and the GRT can not be quashed or set aside. The prayer for deletion of the entry in favour of the State Government with respect to the order passed under Section 32P, therefore, has rightly been turned down.
46. It may not be out of place to mention here that a subsequent order dated 28.02.2005 was passed by the Mamlatdar & ALT in Tenancy Case No. 476 of 2004 under Section 32P of the Tenancy Page 47 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Act in favour of the heirs of the original tenant holding them as entitled to purchase the land under Section 32P(2)(c) subject to the restrictions under Section 43 of the Tenancy Act which had not been challenged before the writ court. As noted hereinbefore, the learned single Judge has recorded and it is also reflected from the record that the order dated 28.02.2005 was brought on record of the writ petition in the affidavit filed by the respondent No.1, but the same was not challenged by moving any amendment application.
47. The result is that the opinion drawn by the learned single Judge that no relief as prayed for can be granted to the petitioner by directing the Mamlatdar to enter the name of the petitioner as owner and occupier of the land-in-question by deleting the entry in favour of the State Government with respect to the order passed under Section 32P of the Tenancy Act, 1948, cannot be said to suffer from any error of law.
48. Lastly, the submission of the learned counsel for the petitioner that the Mutation Entry No. 640 dated 18.08.1955 about the sale of the land-in-question being in favour of the predecessor- Page 48 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined in-interest of the petitioner, could not have been deleted after a period of 41 years with the Mutation Entry No. 8338 dated 03.07.1999, so as to enter the name of the State Government, suffice it to say that the deletion of the name of the petitioners from the revenue record was a consequence of the order dated 8.7.1997 passed by the competent authority, namely Mamlatdar & ALT, in the proceedings under the Tenancy Act' 1948, wherein the petitioners were party. The submission that long drawn entry in the revenue records could not have been expunged, therefore, does not appeal to us. The long possession of the petitioner over the land-in-question also is of no consequence for the said reason.
49. The reliance placed on the decision of the learned single Judge of this Court in Rasiklal Revashankar Jani vs. Kalaji Keshaji being Special Civil Application No. 6909 of 2001 by the learned senior advocate appearing for the appellant is of no benefit, inasmuch as, there is no material on record which would indicate that the original tenant had surrendered his tenancy in favour of the landlord except Mutation Entry No. 644 dated 11.09.1955, which is not backed by any order of the Mamlatdar & ALT in the Page 49 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined Tenancy Case No. 141/1955, the original record of which is not available.
50. Moreover, at this stage, Section 15 of the Tenancy Act' 1948, as it existed prior to amendment in the year 1973, is relevant to be noted hereinunder :-
"15 (1) A tenant may terminate the tenancy in respect of any land at Termination of tenancy any time by surrendering his interest therein in favour by surrender thereof of the landlord : Provided that such surrender shall be in writing, and verified before the Mamlatdar in the prescribed manner.
(2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in so far as the conditions are applicable subject to the like conditions, as are provided in section 31 and 31A for the termination of tenancies.
(3) The land, or any portion thereof, which the landlord is not entitled to retain under sub-section (2), shall be liable to be disposed of in the manner provided under clause (c) of sub-section (2) of section 32P."
51. The said provision permitted the tenant to surrender his interest in favour of the landlord provided such surrender was in writing and verified before the Mamlatdar in the prescribed manner. Page 50 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024
NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined On the surrender of tenancy by the tenant, the landlord would be entitled to retain land so surrendered for the like purposes, and to the like extent under the conditions provided in Section 31 and 31A for termination of the tenancy. In the instant case, original landlord had already parted away with his right as a landlord with the execution of the sale deed dated 6.7.1955 in favour of the predecessor-in-interest of the original petitioner. In view of the 'protected tenant' being in possession of the land-in-question on the date of execution of the sale deed, the purchaser could not have entered into the shoes of the landlord for the purposes of the Tenancy Act' 1948. The whole concept of surrender of tenancy under the then Section 15 of the Act, 1948 was for surrender of tenancy in favour of the original landlord that too in a proper proceeding conducted before the Mamlatdar. In any case, the alleged surrender would not confer any right in favour of the person to whom the right in the land had been transferred by the original landlord with the sitting 'protected tenant'. It is, thus, evident that the benefit of Section 15 of the Tenancy Act, 1948 which was admissible only to the original landlord, cannot be granted to the transferee, who has acquired no right in the land on Page 51 of 52 Uploaded by C.M. JOSHI(HC01073) on Mon Oct 07 2024 Downloaded on : Mon Oct 07 21:33:12 IST 2024 NEUTRAL CITATION C/LPA/263/2012 CAV JUDGMENT DATED: 04/10/2024 undefined the date of purchase as on the said date the land-in-question was admittedly in the possession of the "protected tenant".
52. In view of the above discussion, the appeal is found devoid of merits. Hence, it is dismissed. No order as to costs.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) FURTHER ORDER The prayer made by the learned senior counsel appearing for the appellants for continuing the status quo order passed in this appeal for a period of four weeks, is hereby rejected.
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