Gujarat High Court
Kalabhai (Since Decd.) Through His ... vs Taraben Widow Of Gordhanbhai ... on 17 August, 1990
Equivalent citations: (1991)1GLR118
JUDGMENT R.K. Abichandani, J.
1. The petitioner (since deceased) has challenged the order of the Gujarat Revenue Tribunal passed in Revision Application No. TEN. B.A. 400 of 1979 on 28-9-1979 by which the Tribunal had allowed the Revision Application and set aside the orders of the ALT-Mamlatdar, Baroda and the Deputy Collector holding that the petitioner was the tenant of the lands in dispute. The Tribunal upheld the preliminary objection that the enquiry was incompetent under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the said Act').
2. The ALT-Mamlatdar had started an enquiry under Section 32G of the said Act and on the basis of the evidence on record he came to the conclusion that the petitioner who was a Schedule Caste person was a tenant of the land bearing Survey Nos. 462, 507 and 508 of Village Kapuria and was deemed to have purchased the land on Tillers' Day, i.e. 1-4-1957. The Deputy Collector Vadodara, upheld the order of the ALT-Mamlatdar by his decision dated 30th September, 1978 holding that the finding of the Mamlatdar that the petitioner was the tenant of the disputed land was proper. The respondents Nos. 1 to 7 challenged the order of the Deputy Collector before the Gujarat Revenue Tribunal by way of revision and the Tribunal observing that the arguments were heard only on the preliminary objection and not on the merits of the case, allowed the Revision Application holding that there was no justification for the ALT to start the suo motu enquiry under Section 32G of the said Act because the land was lying uncultivated and the name of the petitioner or his father was not entered in the village record. The Tribunal held that it was not the intention of the Legislature that at any period of time the ALT can start the suo motu enquiry under Section 32G of the Act without verification of the record of rights of that relevant period. The Tribunal held that the ALT had converted the enquiry into an enquiry under Section 70(b) of the said Act. The Tribunal held that the tenancy can only be decided when the name of the claimant figures in the record of rights and some other person or the landlord challenges that tenancy. The Tribunal held that a person who has never figured in the relevant record cannot claim tenancy under Section 32G and Section 70(b) was the only appropriate provision for such type of cases. The Tribunal held that only after the petitioner was declared a tenant under Section 70(b) that the enquiry under Section 32G would be competent and can be started. The Tribunal therefore held that the enquiry was without jurisdiction and perverse and set aside the orders of the ALT-Mamlatdar and Deputy Collector.
3. Mr. P.B. Majmudar, the learned Advocate appearing for the petitioner contended that the name of the petitioner appeared in the record in respect of Survey No. 507 in the years 1951-52 and 1952-53 and it also appeared again from the year 1970 onwards in respect of all three survey numbers. Mr. Majmudar submitted that it was open to the ALT-Mamlatdar to consider the entire evidence including the oral evidence adduced before him for coming to the conclusion whether the petitioner was the tenant or not in the enquiry under Section 32G of the said Act. Mr. Majmudar also contended that even though the Tribunal had heard the arguments only on the preliminary objection and not on the merits of the case, it had made observations on the aspect whether the petitioner was having interest in the land as on 1-4-1957. He argued that the Tribunal had misdirected itself in law by holding that enquiry under Section 32G cannot be held in absence of an entry in record of rights. He also submitted that the Tribunal had committed an error in proceeding on the footing as if the provisions of Section 70(b) were independent of the provisions of Section 32G and as if different enquiries were contemplated by these two provisions.
Mr. A.J. Patel, the learned Counsel appearing for the respondents Nos 1 to 7 strongly contended that the ALT-Mamlatdar ought not to have proceeded with an enquiry under Section 32G in absence of a substantive application under Section 71 of the said Act for the purpose of determining whether the petitioner was a tenant under Section 70(b) of the Act. He submitted that the opening words "As soon as may be after the Tillers' Day" of Section 32G(1) clearly indicate that the public notice contemplated under that provision should have been issued soon after 1st April, 1957. He submitted that the idea behind the provisions of Section 32G was that the Tribunal has to invite all such tenants who are deemed to have purchased the lands under Section 32, all landlords of such lands and other persons interested therein to appear before it for the purpose of holding an enquiry for determining the purchased price of the land if such tenant is willing to purchase the land. Mr. Patel submitted that it was only in respect of one Survey number namely Survey No. 507 that the name of the petitioner had appeared in the record of rights and that too in the years 1951-52 and 1952-53 and there was no such documentary evidence in respect of other two survey numbers. He therefore submitted that the Tribunal was justified in upsetting the orders of the ALT-Mamlatdar and the Deputy Collector by which the petitioner was held to be a tenant and the deemed purchaser of the land.
4. It will be noticed from the provisions of Section 70 of the said Act that various duties of the Mamlatdar are enumerated therein for the purposes of the said Act. Therefore, whenever such questions as are enumerated arise under various provisions of the said Act, the Mamlatdar is duty-bound to decide such questions. By the very scheme of Section 70, all such duties as are enumerated are referable to various provisions of the said Act. In other words, whenever such questions arise under various provisions of the said Act, the Mamlatdar shall decide such questions. Even the duties of the Agricultural Lands Tribunal are prescribed in Section 68 of the said Act which include duty to determine purchase price of land under Sections 32G, 63A or 64 as also duty to decide any dispute under Sections 32 to 32R of the said Act. The Agricultural Lands Tribunal is also required to perform such other functions in carrying out the provisions of the said Act as may be prescribed or as may be directed by the State Government. By virtue of the Notification dated 9-7-1960, the State of Gujarat invested the Agricultural Lands Tribunal with the jurisdiction of the Mamladar. It is, thus, clear that the ALT-Mamlatdar in an enquiry under Section 32G will also have jurisdiction to decide the question as to whether a person is or was a tenant or a protected tenant or a permanent tenant under Section 70(b) of the said Act and such an order of the ALT-Mamlatdar would not be open to attack on the ground of lack of jurisdiction. In the proceedings which the Tribunal undertakes to decide under Section 32G of the said Act, question may arise as to whether a person is a tenant who under Section 32 is deemed to have purchased the lands. This necessarily would lead to an enquiry into the question as to whether the person is a permanent tenant or a tenant who is deemed to have purchased the land on the Tillers' day. When such questions arise under Section 32G and when the Agricultural Lands Tribunal is invested with the jurisdiction of the Mamlatdar, there can arise no situation where the question should be referred to some other authority or where a separate enquiry under Section 70(b) should be held as observed by the Tribunal. The provisions of Section 70(b) of the said Act only lay down the duty of the Mamlatdar which duty must be necessarily discharged by the Agricultural Lands Tribunal, who is invested with the jurisdiction of the Mamlatdar, while holding an enquiry under Section 32G of the said Act. The whole idea behind investing the Agricultural Lands Tribunal with the jurisdiction of the Mamlatdar appears to be to prevent multiplicity of proceedings and save time. It will be seen under Section 67(2) of the said Act that the Agricultural Lands Tribunal is an office not below the rank of the Mamlatdar and this is why the State Government entrusted the additional function to the Tribunal by virtue of the provisions of Section 68(d) of the said Act under which the Tribunal is duty-bound to perform such other functions in carrying out the provisions of the Act as may be directed by the State Government. The jurisdiction of the Agricultural Lands Tribunal to determine the question whether a person is tenant or not was excluded by necessary implication by Section 70(b) of the said Act, but the Notification dated 9th July, 1960 made a vital difference in the position and by reason of that Notification were conferred on the Agricultural Lands Tribunal to discharge the functions of the Mamlatdar within the area over which it had jurisdiction. Therefore, no separate application as envisaged under Section 71 of the Act would be necessary for determining whether a person is a protected tenant or a permanent tenant when such question arises in a proceeding under Section 32G of the said Act. Similar contention as is sought to be raised by the learned Counsel Mr. Patel on this aspect came to be considered by this High Court in Narayanprasad Haribhai Majmudar and Anr. v. Merubhai Rayabhai and Anr. and it was held that the Agricultural Lands Tribunal was clothed with the powers of the Mamlatdar and it had jurisdiction to decide all question which could be decided by the Mamlatdar including the question whether a person is a tenant or a protected tenant or a permanent tenant under Section 70(b) of the said Act. It was further held that the proceedings for determination of the purchase price under Section 32G is to be initiated by Agricultural Lands Tribunal itself and therefore by reason of the excepting clause at the commencement of Section 71, such proceeding under Section 32G is not required to be commenced before the Agricultural Lands Tribunal by an application under Section 71. In the proceedings which are validly commenced under Section 32G, various questions would arise for determination of the Agricultural Lands Tribunal including as to whether a person is a tenant or a protected tenant or a permanent tenant. When the Agricultural Lands Tribunal is clothed with the powers of the Mamlatdar, it obviously would have jurisdiction to decide the question which are required to be decided by the Mamlatdar under Section 70 of the said Act. Any insistence on a separate application being made in respect of such questions arising under Section 32G which the Agricultural Lands Tribunal-Mamlatdar is duty-bound to decide, would verge on absurdity. Therefore, there is no substance in the contention raised by the learned Counsel Mr. Patel on this aspect of the matter. The Tribunal has committed an obvious error by treating the provisions of Section 70(b) as independent of the provisions of Section 32G. The ALT-Mamlatdar could not have insisted on any separate proceedings under Section 70(b) because he had commenced the proceedings under Section 32G of the said Act in which question as to whether a person was a tenant or a protected tenant or a permanent tenant could have been decided because the Agricultural Lands Tribunal was already entrusted the functions of the Mamlatdar by the Notification issued by the State of Gujarat. The finding of the Tribunal that such persons should get their tenancies declared under Section 70(b) of the said Act is, therefore, patently erroneous.
6. This brings us to the finding of the Tribunal that no enquiry could have been commenced under Section 32G by the Agricultural Lands Tribunal because there was no prima facie evidence in the record of rights and notices were not issued soon after the tillers' day. The provisions of Section 32G are enacted with a view to enable the Agricultural Lands Tribunal to issue notice and determine purchase price of land to be paid by tenants. The issue of an individual notice is also required by this Section. Where a tenant fails to appear or is unwilling to purchase, the Tribunal declares the purchase ineffective. It is the duty of the Tribunal under this provision to publish such public notice and to issue individual notices. Thus, if the notices are not immediately issued after the tillers' day, the fault cannot be attributed to the tenant or other person interested in the land. The proceedings under Section 32G of the said Act cannot be scuttled on the ground that the notices have not been issued immediately after the tillers' day. The tenants who are under Section 32 of the said Act deemed to have purchased the lands and other persons interested would be persons entitled to such notices. Under Section 32G pursuant to such notice the tenant can put forth his willingness to purchase the land which would lead to fixing the price thereof. Under Section 32(1), the tenant is deemed to have purchased the land from his landlord free from all encumbrances on the tillers' day, i.e., 1-4-1957. Therefore, when the ALT-Mamlatdar proceeds to inquire into the question as to whether a person was a tenant who under Section 32 was deemed to have purchased the lands all that he is required to ascertain is the facts as on tillers' day and there can be no question of creation or declaration of any new rights while inquiring into that aspect in a proceeding under Section 32G. In other words, the rights which are conferred on the tenants of being deemed purchasers of land under Section 32 are required only to be ascertained whenever such question arises for determination in a proceeding under Section 32G and this can be done by the Agricultural Lands Tribunal because the Agricultural Lands Tribunal has been entrusted with the functions of the Mamlatdar by virtue of the Government Notification dated 9th July, 1960. The reasoning adopted by the Tribunal that such enquiry could not have been commenced on the basis of supplementary list sent by the Talati cannot, therefore, be accepted.
7. There is no indication in the provisions of Section 32G of the said Act that the proceedings under that provision cannot be commenced unless the names of tenants appear in the record of rights as on 1-4-1957. Such a reasoning adopted by the Tribunal would deny the benefit of this legislation to a number of tenants whose names have not been entered into the village record for no fault on their part. Rule 17 of the Bombay Tenancy and Agricultural Lands Rules, 1956, provides for issuance of notice under Section 32G in Form VIII and the manner of publication of such notice. The Tribunal has to record the statement of tenant under Section 32G on oath. Rule 17A provides for the manner of satisfying whether tenant's consent to purchase price is voluntary. Thus, neither Section 32G nor Rule 17 indicate that notices have to be issued only to such of the tenants whose names appeared in the record as on 1-4-1957 and not to other tenants whose names did not appear in the record of rights. The statutory benefit of becoming deemed purchasers of land given to tenants cannot be denied to them merely because their names were not entered in the record of rights if they otherwise satisfy the conditions of Section 32 of the Act. Thus, it would be open to the tenant to adduce all the relevant evidence oral as well as documentary and for the ALT-Mamlatdar to consider all such evidence while determining the question whether a person is or was a tenant or a protected tenant or a permanent tenant. Therefore, the reasoning of the Tribunal that no enquiry could have been commenced under Section 32G on the ground that the name of the petitioner did not appear in the Village Form 7 and 12 in respect of the land was lying uncultivated cannot be accepted.
8. In view of the above finding of this Court, the matter will have to be remanded to the Tribunal for decision on merits in light of the observations made in this judgment and in accordance with law. The petition is, therefore, allowed and the order of the Gujarat Revenue Tribunal dated 28/29-9-1979 passed in Revision Application No. TEN.B.A. 400 of 1979 at Annexure 'C to the petition is hereby set aside and the Tribunal is directed to decide the Revision Application on merits in light of the observations made in this judgment and in accordance with law. Rule is made absolute accordingly with no order as to costs.