Gujarat High Court
Navrangpura Gam Dharmada Trust vs Gautambhai Bhikhabhai Thakor on 26 August, 2019
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/5342/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.5342 of 2017
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR.JUSTICE A.J.DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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NAVRANGPURA GAM DHARMADA TRUST
Versus
GAUTAMBHAI BHIKHABHAI THAKOR & 4 others
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Appearance :
MR MEHUL SHAH, SENIOR COUNSEL ASSISTED BY MR VISHAL C MEHTA for
the Petitioners.
MR KANVA ANTANI, Assistant Government Pleader for the Respondent No.4.
DS AFF.NOT FILED for the Respondent Nos.2,3,5
MR ANSHIN DESAI, SENIOR COUNSEL ASSISTED BY MR ZALAK B PIPALIA for
the Respondent No.1.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 26/08/2019
CAV JUDGMENT
1. By way of the present petition under Articles 226, 227 and 300-A of the Constitution of India, the petitioner has firstly challenged the order dated 10.5.2012 passed by the Mamlatdar Page 1 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT and Agricultural Lands Tribunal ('ALT' for short), Daskroi, Dist. Ahmedabad in Remand Tenancy Case No.25 of 2007 by which it has been held that one Laxmiben daughter of Khodaji Dhulaji is a deemed tenant under Section 4 of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act') on the tiller's day i.e. 1.4.1957 (Section 32 of the Tenancy Act) of the property originally belonged to the petitioner Trust since she along with her father were cultivating the land, and fixing the price of the land as well as subsequent two orders dated 9.9.2015 passed by the Deputy Collector, Ahmedabad dismissing the appeal preferred by the petitioner under Section 74 of the Tenancy Act as well as judgment and order dated 17.11.2016 passed by the Gujarat Revenue Tribunal, Ahmedabad dismissing the revision application filed by the petitioner under Section 76 of the Tenancy Act.
2. A caveat was filed on behalf of the private respondent. The coordinate Bench issued notice on 17.7.2017 and parties were directed to maintain status-quo with regard to nature, character and possession of the property in question till the next date of hearing.
3. Two affidavits-in-reply have been filed by the private respondent on 7.12.2017 as well as dated 5.2.2019 along with necessary documents in support of the case.
4. The case put forward by the petitioner Trust is as under:-
5. That the petitioner is a Trust and holding various lands in the city of Ahmedabad including the land in question i.e. Survey No.185/2, Town Planning Scheme No.19, Final Plot No.252 admeasuring Acres 0.34 Gunthas (2694 Sq. Mts. after Page 2 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT implementation of Town Planning Scheme) situated at village Shekhpur - Khanpur, Tal. City, Dist. Ahmedabad.
6. One Laxmiben Khodaji Dhulaji preferred an application under Section 32-G of the Tenancy Act before the concerned Mamlatdar requesting to declare her as a tenant and shown readiness and willingness to pay the price for the land claiming that she is the daughter of Khodaji Dhulaji who was cultivating the aforesaid land and subsequent to his death, she had continued the same activities. The said application came to be allowed in favour of said Laxmiben vide order dated 6.4.1995 declaring her as a deemed tenant and also fixed the purchase price for the land in question.
7. The petitioner Trust challenged the said order by preferring Tenancy Appeal No.47 of 1995 before the Deputy Collector, Ahmedabad. The Deputy Collector by order dated 26.12.1995 partly allowed the appeal preferred by the petitioner Trust and remanded the case to decide afresh.
8. Laxmiben challenged the said decision by way of filing two separate Revision Application Nos.528 of 1995 against the interlocutory order passed by the Deputy Collector as well as Revision Application No.119 of 1996 against the final order dated 26.12.1995 by respondent No.2. The revision application was rejected by making certain observations and accordingly, the matter was finally heard by the Mamlatdar and ALT being Remand Case No.25 of 2007.
8.1 It is also the case of the respondent No.1 that Laxmiben was the daughter of Khodaji who was cultivating the land in question as a tenant on the day of enactment of the Act. It is also the case of the respondent No.1 that with regard to the possession Page 3 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT of the property was with Khodaji Thakore and thereafter Laxmiben, sufficient material was produced before several authorities which have accepted the same. It is also the case of the petitioners that sufficient material was produced with regard to the relationship between the respondent No.1 with Laxmiben as well as Laxmiben being the daughter of said Khodaji. The relationship between the petitioner Trust and the said Laxmiben had been decided under the provisions of Tenancy Act way back in the year 1995. However, the matter has been reconsidered only with regard to the nature of tenancy. Therefore, the petitioner Trust has no right, title or interest over the property in question.
8.2 Whereas the case put forward by the private respondent No.1 is that he is nephew of the deceased Laxmiben who had bequeathed certain movable and two immovable properties in his favour by executing a Will. A Probate Certificate came to be issued with regard to the Will by competent Civil Court which has become final and have all rights over the property in question.
9. Mr. Mehul Shah, learned Senior Counsel appearing with Mr. Vishal C. Mehta for the petitioner would submit that the Mamlatdar & ALT, the Deputy Collector and Gujarat Revenue Tribunal have committed grave error in appreciating the provisions of law, particularly, the applicability of provisions of Section 32 of the Tenancy Act in view of the fact that the land in question was within Municipal borough when the Tenancy Act, 1948 came into force.
10. Mr. Shah would further submit that as per Section 43 C of the Tenancy Act which has now been amended time and again, initially, made it clear that Sections 31 to 32 ("both inclusive"). Sections 33-A, 33-B, 33-C and 43 shall not apply to the lands in the Page 4 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT area within the limits of Municipal borough constituted under the Bombay Municipal Borough's Act, 1925. He would further submit that it is an undisputed fact that the land in question was part of Municipal borough and, therefore, certain provisions of Tenancy Act was not applicable and, therefore, the tenant had no right over the property though she might be cultivating the land in question. He would further submit that the authorities below have misread the provisions since sub-Section (c) of Section 43 C which has been subsequently deleted only in the year 1960. It is the case of the petitioner that on the tillers' day i.e. 1.4.1957, the land was within the Municipal borough and thereafter even if the land had been cultivated by the tenant, would not make such tenant entitle for any right under the Tenancy laws. He, therefore, would submit that when the provisions of Tenancy Act, particularly dealing with a case of tenant is not applicable to the land in question, there is no question of declaring a person a tenant and fixing the price under the said provision. He, therefore, would submit that the petition be allowed and the impugned orders be quashed and set aside.
11. Mr. Shah would further submit that it is also doubtful whether Laxmiben is daughter of Khodaji Dhulaji or wife of Khodaji Dhulaji since she had led evidence before the Tribunal by stating that she was wife of said Khodaji and, therefore, her claim is also doubtful.
12. Mr. Shah would further submit that during the pendency of the proceedings before the Deputy Collector, the said Laxmiben had died and, therefore, the respondent No.1 - Gautam Bhikhalal Thakor who claim to have right over the property pursuant to a Will executed by Laxmiben in his favour creates doubt since there is no relation between the said Laxmiben and Gautambhai - respondent No.1 herein. He would further submit that in response to the affidavit-in-reply filed on behalf respondent Page 5 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT No.1 by which probate certificate issued by the competent Civil Court in favour of respondent No.1 is concerned, the Trust was not properly assisted before the competent Civil Court. Therefore, Probate Certificate has been issued with regard to property of Laxmiben in favour of respondent No.1 would not establish any right in his favour. He, therefore, would submit that the petition be allowed.
13. On the other hand, learned Senior Counsel Mr. Anshin Desai appearing with Mr. Zalak Pipaliya for respondent No.1 has vehemently opposed this petition and would submit that the questions raised by the petitioners in the present petition have been raised only for the sake of it since case was remanded by the authority only with a direction to the Mamlatdar to decide whether the said Laxmiben was a deemed tenant, protected tenant or permanent tenant. She was already declared a tenant way back in the year 1995. Mr. Desai has placed an order dated 26.12.1995 passed by the Deputy Collector (Appeals) remanding the case to Mamlatdar and ALT only for the purpose of deciding whether Laxmiben was a permanent tenant or deemed tenant. Same thing has also been examined by the Gujarat Revenue Tribunal when the said decision was challenged by deceased Laxmiben.
13.1 By taking me through the order dated 19.2.2007 passed by the Gujarat Revenue Tribunal while dealing with the Revision Application preferred by Laxmiben, he would submit that the revision application is rejected only on the ground that the Deputy Collector has remanded the case to consider whether Laxmiben is permanent tenant or deemed tenant. He would further submit that a certificate under Section 32 M of the Act has already been issued by the competent Authority way back on 29.9.2015 since the payment was made by deceased Laxmiben.
Page 6 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT13.2 As far as the submission made by Mr. Shah with regard to conduct of Laxmiben about her relationship with Khodaji Dhulaji is concerned, he would submit that sufficient documents were produced before the concerned Authority establishing that she was the only daughter of Khodaji Dhulaji which has been discussed by the authority below in their orders. He would further submit that petitioner is not concerned about the relationship of Laxmiben with Khodaji Dhulaji. He has taken me through an affidavit filed by one Bhikhaji Kalaji Thakore along with which a pedigree is produced which suggests that Laxmiben was daughter of Khodaji Dhulaji and his wife Motiben Khodaji.
14. Mr. Desai would further submit that the deceased Laxmiben had executed a Will in favour of the present respondent No.1. An application was submitted before the City Civil Court, Ahmedabad being Civil Misc. Application No.651 of 2012 for Probate wherein the petitioner Trust was made party as opponent. The Trust never raised any objection about the Probate issued in favour of the respondent No.1 with regard to the land in question itself and accordingly, judgment and order was passed on 1.9.2014 and Probate was issued accordingly. By the said Will, two properties belonged to the said Laxmiben were bequeathed in favour of respondent No.1 and accordingly probate has been issued. The said decision has never been challenged by any of the objector including the present petitioner and has become final. He, therefore, would submit that the present petition has been filed without any basis and is required to be rejected.
15. Mr. Desai would further submit that as provided under Section 88 B of the Tenancy Act, a Trust can request to grant exemption for applicability of certain provisions of the said Act. An application was made by the Trust to competent Officer which was rejected way back on 25.6.1973. The said decision of refusal of Page 7 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT grant of exemption, was challenged by the petitioner Trust before the Gujarat Revenue Tribunal. However, by judgment and order dated 27.6.1974, revision application filed by the Trust came to be dismissed which has become final. Therefore, all the provisions of the Tenancy Act are applicable even though the petitioner is a Trust.
16. As far as the submissions made by Mr. Shah with regard to applicability of provisions of the Tenancy Act is concerned, he would submit that the authorities below have rightly dealt with Section 43 C of the Tenancy Act which have been time and again amended. He would further submit that by Act No.16 of 1960, Section 32 of the Tenancy Act was amended and by adding sub-Section (4) to Section 32, it was clarified that every tenant in the area within the limit of Municipal borough, shall subject to other provisions of the Act, be deemed to have purchased from the landlord free from all encumbrances subsisting there on the said date the land held by him as tenant as if the date were the tillers' date i.e. 1.4.1957. He would further submit that the Division Bench of this Court while dealing with a matter under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 about the applicability of the Tenancy Act under Section 121 (now deleted) in the case of Navrangpura Gam Dharmada Milkat Trust and another v. Ramtuji Ramaji and others, 1993 (2) 34 GLR 1496 has held that the intention of the authority was not to deprive the tenant of the fruits of enactment of the Tenancy Act. Therefore, same analogy can be made applicable in the present case. He would further submit that even proviso to unamended Section 43 C protects the rights acquired by the persons as tenants and, therefore, even the land was within Municipal borough, the tenants would be entitled under the provisions of the Tenancy Act. In support of his submissions, he has relied upon the decision of the Hon'ble Supreme Court in the case of Ishwarlal Thakorelal Page 8 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Almaula (Deceased) after him his heirs and Legal Representatives v. Motibhai Nagjibhai, AIR 1966 SC 459. He, therefore, would submit that the petition may be dismissed.
17. Mr. Desai would further submit that even the present petition has been filed under Article 227 of the Constitution of India and, therefore, this Court would not like to examine the facts of the case which has been scrutinized by three different authorities on several occasions since the case was remanded in past. In support of his submissions, he has relied upon the decision in the case of Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, (1975) 1 SCC 858 and in the case of Raj Kumar Bhatia v. Subhash Chander Bhatia, (2018) 2 SCC 87.
18. I have heard learned advocates appearing for the respective parties, perused the orders impugned in the petition as well as several orders passed by several authorities as well as by the Gujarat Revenue Tribunal dealing with the case in the year 1994 - 95, Probate certificate issued by the City Civil Court, Ahmedabad. Since contention was raised about the stand taken by Laxmiben about her relationship with the deceased Khodaji and when certain observations were made in the order passed by the Mamlatdar, ALT as well as Deputy Collector, the original record was called for and the same has been examined, though the Court was aware that the case is being considered under Article 227 of the Constitution of India and there would be a narrow scope for the Court to examine the case on factual aspects, when there are concurrent findings by the three lower authorities and Tribunal.
19. The Gujarat Tenancy and Agricultural Lands Act, 1948 was nomenclature as Bombay Tenancy and Agricultural Lands Act, 1948 since the area of the present State of Gujarat was part of Page 9 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Bombay State, the provisions were made applicable to all the agricultural lands covered under the then Bombay State. The Bombay word has been substituted with the word Gujarat only in the year 2011.
19.1 It is an undisputed fact that the petitioner Trust had applied to get exemption under Section 88B of the Tenancy Act. The Deputy Collector rejected the application by assigning reasons which was confirmed by the Gujarat Revenue Tribunal in Revision Application No. TEN B.A. 573 of 1973 by judgment and order dated 27.6.1974. The said decision has become final and, therefore, the petitioner would not be entitled to get any benefits out of Section 88B.
19.2 Several documents which have been produced before this Court and were produced before the authorities below do suggest that Khodaji Dhulaji Thakore was in occupation of the land in question even before the enactment of the Tenancy Act, 1948. He continued to cultivate the land for decades, even after 1948. He expired in the year 1973. Subsequent to death of Khodaji, Laxmiben continued to cultivate the land. She applied for the first time in the year 1994 to get benefit under Section 32 of the Tenancy Act. The Mamlatdar & ALT, Ahmedabad by his order dated 6.4.1995 held that the said Laxmiben is a permanent tenant. Similar contentions were raised by the petitioner Trust that the Act would not cover the land in question since the same was within the limits of Municipal borough. However, the same was negatived by the Mamlatdar. The said decision was challenged by the petitioner Trust by way of filing Appeal No.47 of 1995, which came to be allowed in part and the matter was remanded. However, if the said order dated 26.12.1995 is perused, the matter was remanded to Mamlatdar to decide only the question whether the said Laxmiben is a permanent tenant or a deemed tenant. The Gujarat Revenue Page 10 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Tribunal did not accept the revision application filed by the respondent No.1, however, has observed in its order that since the matter is remanded only for the purpose of deciding the nature of tenancy, the Tribunal would not like to interfere with the same.
20. In view of the above facts, the Mamlatdar has decided the case and has again dealt with all the contentions which were raised before him as well as have been raised by filing the present petition.
21. It also appears from the record and it is established before the authorities below that deceased Laxmiben was daughter of Khodaji Dhulaji. It is also established that the respondent No.1 is the nephew of the deceased Laxmiben in whose favour the Probate has been issued which has become final.
21.1 A Probate certificate has been issued in favour of respondent No.1 by a competent Civil Court which has become final.
22. As stated herein above, I have also gone through the depositions of Laxmiben and documents produced before the authorities below in support of her say about her relationship with Khodaji. It has been rightly held by the authority that she was the daughter of the said Khodaji Dhulaji. Therefore, the contentions raised by the petitioner with regard to relationship of either the respondent No.1 with Laxmiben as well as deceased Laxmiben with Khodaji Dhulaji are required to be discarded.
23. Now, the Court would like to deal with the submissions made by learned Senior Advocate Mr. Mehul Shah about the applicability of the Tenancy Act as claimed under Section 43 C, which reads as under :-
Page 11 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT"43C. Certain provisions not to apply to municipal or cantonment areas :- [1] [Nothing in sections 31] to 32R (both inclusive) [2] [33A, 33B, 33C] and 43 shall apply to lands in the area within the limits of :-
(a) Greater Bombay.
(b) A municipal corporation constituted under Bombay Provincial Municipal Corporations Act, 1949.
(c) A municipal borough constituted under the Bombay Municipal Boroughs Act, 1925.
(d) A municipal district constituted under the Bombay District Municipal Act, 1901.
(e) A cantonment, or
(f) Any area included in a Town Planning Scheme under the Bombay Town Planning Act, 1954:
Provided that if any person has acquired any right as a tenant under this Act on or after the 28th December 1948, the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952, or [3] [***] by the Amending Act, 1955, notwithstanding the fact that either of the said Acts has been applicable to the area in which such land is situate."
24. In the year 1960, the Tenancy Act was amended by the Act No.16 of 1960 and sub-Section (4) was inserted by the said amendment which reads as under :-
Page 12 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT"(4) On the date of the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1960 (Guj. XVI of 1960), every tenant in the areas within the limits of Municipal boroughs within the meaning of the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925), or within the limits of municipal districts constituted under the Bombay District Municipal Act, 1901 (Bom. III of 1901), shall, subject to the other provisions of this Act, be deemed to have purchased from a landlord free from all encumbrances subsisting thereon on the said date the land held by him as tenant, as if the said date were the tillers' day.
Provided that nothing in this sub-section shall apply to land leased by a landlord and situated within the limits of any such Municipal borough or municipal district, if such land does not exceed an economic holding and the total income of the landlord including the rent of such land does not exceed Rs.1,500 and such land is not held under a permanent tenancy."
25. A similar issue with regard to implication of Section 43- C of the Tenancy Act has come up for consideration before the Hon'ble Supreme Court in the case of Ishwarlal Thakorelal Almaula (Deceased) after him his heirs and Legal Representatives v. Motibhai Nagjibhai (Supra) and the Hon'ble Supreme Court in paragraph 9 has held as under :-
"9. By the substantive clause of S. 43-C the tenants do not acquire in respect of lands Page 13 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT described therein rights conferred by Ss.32 to 32- R: that part of S. 43-C is therefore in the nature of a qualification or an exception, and functions as a proviso to Ss.32 to 32-R. The proviso to S.43-C goes on, not to carve out an exception or to impose a qualification to the exclusion prescribed by the main enactment, but deals with a matter which is unrelated thereto. In terms it seeks to protect rights acquired or arising not under Ss.32 to 32-R (which were added by Act 13 of 1956) but under the principal Act 67 of 1948 on or after December 28, 1948. And those rights are protected not from the operation of the substantive part of S. 43-C, but from the operation of Act 33 of 1952, or of "the Amending Act of 1955". It may be recalled that by Act 33 of 1952, the Act ceased to apply to lands within the municipal boroughs, but the intention disclosed by the proviso to S. 43-C was to declare that all rights acquired by persons as tenants under the principal Act were to continue to remain available to them in respect of lands within the Municipal Boroughs as if Act 33 of 1952 were never enacted. The "Amending Act of 1955" is no other than Act 13 of 1956 (see the definition of "permanent tenant" in S.2 (10-A) added to the principal Act and S. 1 (1) of Act 13 of 1956). The Legislature has by referring to the "Amending Act of 1955"
sought also to protect, save as expressly provided in S. 43-D, the rights acquired under Act 67 of 1948, notwithstanding the amendments made by Act 13 of 1956. By S.48 of Act 13 of 1956, the scheme of exemption from the operation of the Page 14 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Act of certain provisions thereof was extensively amended in respect of different classese of land. Section 88 of Act 67 of 1948 as originally enacted was substituted by Ss.88, 88-A, 88-B, 88-C and 88-D. But this modified scheme of exemption and other provisions of the Act were by virtue of the proviso to S. 43-C not to affect the rights of tenants acquired on or after December 28, 1948 under Act 67 of 1948, save as expressly provided by S. 43-D."
26. From bare reading of the above observations of the Hon'ble Supreme Court, it is clear that all rights acquired by persons as tenants under the principal Act were to continue to remain available in respect of lands within the Municipal Boroughs as if Act 33 of 1952 were never enacted.
27. The Division Bench of this Court while considering Sections 32G and 88B of the provisions of the Bombay Tenancy Act, the Gujarat Town Planning and Urban Development Act, 1976 as amended by the Amendment Act, 1986 being Section 121 which was deleted by the Amendment Act w.e.f. 12.6.1985, in the case of Navrangpura Gram Dharmada Milkat Trust and another v. Ramtuji Ramaji and others, 1993 (2) GLR 1946, was considering the issue as follows :-
"(i) The proceedings initiated by respondent Nos.1 to 4 by application, dated March 5, 1979 under Sec.32G of the Bombay Tenancy Act before the A.L.T. At Ahmedabad culminating into the impugned order of the Gujarat Revenue Tribunal were thoroughly incompetent and without jurisdiction, inasmuch as the provisions of the Page 15 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Bombay Tenancy Act, 1948 were not applicable to the land in question by virtue of operation of Sec.121 of the Gujarat Town Planning Act, 1976 as the land in question came to be included in the Municipal area of Ahmedabad Municipal Corporation in the year 1958 and as also the land was included in the draft and Final Town Planning Scheme No.19."
"5A. Re-submission (I)
(i) In view of Sec.121 of the Gujarat Town Planning and Urban Development Act, 1976 the commencement of proceedings under Sec.32G of the Bombay Tenancy Act on March 5, 1979 by the respondents for fixation of purchase price on the ground that they had become deemed purchaser on 1.4.1957 was null and void and without jurisdiction inasmuch as the provisions of the Bombay Tenancy Act were not applicable to the area in question, submitted the petitioner - Trust.
It is not disputed before us that the land bearing Final Plot No.177 was included in the draft scheme which was published in the year 1962 as well as in the Final Scheme No.19 which became final and has come into force with effect from March 8, 1966. It is, therefore, submitted that Sec. 121 of the aforesaid Act was attracted and the proceedings under Sec.32G were absolutely without jurisdiction."
28. Paragraph 5 A (iv) and (v) of the above referred judgment of the Division Bench of this Court reads as under :-
Page 16 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT"(iv) From the aforesaid provision it becomes at once clear that the provisions of Bombay Tenancy & Agricultural Lands Act, 1948 as in force for the time being shall not apply to any area included in a T.P. Scheme. The area in question was admittedly included in a T.P. Scheme being T.P. Scheme No. 19. Therefore, the provisions of the Bombay Tenancy Act including Section 32G were not applicable to the area or parcel of land. This Act of 1976, though enacted in the year 1976, came into force with effect from 1-2-1978. Section 121 of the said Act, therefore, would apply with effect from 1-2-1978. Therefore, from that date none of the provisions of the Bombay Tenancy Act was applicable to the land in question as admittedly it was included in the draft as well as in the final T. P. Scheme. It is clear that by operation of Section 121 of the said Act, the legislature intended to exclude the operation of the provisions of Bombay Tenancy Act to areas included within the T.P. Scheme. That legislative intent is very clearly and unambiguously given effect to by enacting Section 121 of the T.P. Act, 1976. The petitioner would have been on a stonger footing had an identical provision, been in existence in the Bombay T.P. Act and had such provision operated at the relevant time when the deemed purchase of agricultural lands by sitting tenant took place on 1-4-57, i.e. Tillers' Day. It is required to be kept in mind that the Bombay T.P. Act of 1954 did not contain any provision identical to Section 121 of the Act of 1976 and the legislature then never wanted to exclude the Page 17 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT applicability of the Bombay Tenancy Act to the areas included in the T.P. Scheme. The relevant date being 1-4-57 on which date all the sitting tenants of agricultural lands became the deemed purchasers of the lands, Section 121 of the Act which came into force on 1-2-78 would not deprive the sitting tenants of benefit of statutory purchase which had taken place on 1-4-57. Some formality of fixation of the purchase price and payment thereof by the tenant was required to be completed. Therefore, as observed by the Supreme Court in the case of Sri Ram Narain Methi v. State of Bombay reported in AIR 1959 SC 459 the statutory purchase had taken place on 1-
4-57 as admittedly deceased-tenant Ramaji Adaji was in possession of the parcel of land as tenant. On that date he has become deemed purchaser. The provisions of Bombay Tenancy Act, 1948 as they stood after its amendment in 1956 were squarely attracted to the area in question and there was admittedly no exclusion of the area from the provisions of the Bombay Tenancy Act as on 1-4-57. In that view of the matter, we are of the opinion that the proceeding which has statutorily commenced and which has made the tenant a deemed purchaser cannot be rendered ineffective, or the tenant who has become deemed purchaser cannot be deprived of that status by subsequent enactment which was not dealing with the relationship of landlord and tenant and it was a statute dealing with altogether a different subject, namely, that of Town Planning and Town Development. Therefore, Section 121 of Page 18 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT the T.P. Act of 1976, in our opinion, cannot render ineffective the statutory purchase that has already taken place in favour of deceased tenant- Ramaji Adaji, nor would the provisions of Bombay Tenancy Act cease to operate, vis-a-vis, such transactions which have taken place prior to coming into force of the ,T.P. Act 1976.
(v) It is also required to be noted that the legislature immediately thereafter realised the adverse effect of Section 121 on operation of Bombay Tenancy Act in the areas to which the provisions of Bombay Tenancy Act hitherto applied it realised that it would result into depriving the tenants of the status of deemed purchasers which was conferred on them by beneficial legislation, and therefore, the State legislature enacted the Gujarat Town Planning & Urban Development (Amendment) Act, 1986. The said amendment is brought into force with effect from June 12, 1985 as Section 1(2) thereof provided that it shall be deemed to have come into force on June 12, 1985. By Section 5 of the Amending Act it is provided that in the principal Act Section 121 shall be deleted. It is thus clear that Section 121 from the T.P. Act, 1976 stands deleted with effect from June 12, 1985. Mr. G. N. Desai, learned counsel for petitioner-trust however submits that the said deletion of Section 121 is not fatal to the submission of the petitioners because as on 5th March, 1979, i.e. the date on which tenant made an application under Section 32G to Mamlatdar & ALT said Section 121 was in operation, and so long as the Page 19 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT said section was operative the provisions of Bombay Tenancy Act were not applicable to the area in question. It is true that Section 121 of the said Act operated, but in our opinion, same was not applicable to case where the statutory purchase has already taken place on 1-4-57, and when the tenant has become deemed purchaser the date March 5, 1979 is not relevant date as the deemed purchaser was not required to make any application for fixation of purchase price. It was the statutory obligation of Mamlatdar and ALT to fix the purchase price of parcel of land of which a deemed purchase has taken place on 1-4-57.
Therefore, since the proceeding has already commenced on 1-4-57 and since the tenant has already become a deemed purchaser the fixation of purchase price was a step in aid of statutory obligation. Such a step where taken by the statutory authority itself or at the instance of deemed purchaser would not render the decision of the authority non est or one without jurisdiction."
29. The Division Bench of this Court in the above referred decision further observed at page 1528 as under :-
"(a) The words "subject to other provisions of this section and the provisions of came to be introduced in Section 32(1) of the Act by Bombay Act 63 of 1958. It is pertinent to note that Sub-
section (1A) of Section 32 was also inserted by Bombay Act 63 of 1958. However, . Sub-section (1B) of Section 32 was not on the Statute Book at Page 20 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT all and it came to be inserted only by Gujarat Amendment Act 5 of 1973. Therefore, it cannot be accepted that the legislature wanted, subsequently, introduced provision, to prevail over Section 32(1) especially when Section 32(1) was enacted with a specific purpose of making the tillers of the soil the owners thereof by compulsory statutory purchase of land. Therefore, if the tenant is in possession of land on tiller's day i.e. on 1-4-57 a compulsory purchase of land takes place and the landlord would be divested of his title over the land and the title would be vested in the tenant. To this scheme of Act no exception was sought to be made by subsequent sub-
sections which came to be introduced by the legislature With a view to extending the benefit of Section 32 to those tenants who were dispossessed of the land either before 1-4-57 or subsequent thereto. The tenants who were dispossessed of the lands prior to 1-4-57 and who are deprived of their right of becoming "deemed purchaser" of the lands were sought to be provided benefit of statutory purchase by introducing Section 32(1A) and it was stipulated that if such tenants have already made application for possession under Section 29(1) of the said Act and if such possession is restored to such tenants they shall be deemed to have purchased the lands on the date on which their application for possession was finally granted. Since such a tenant comes into possession of land on a date subsequent to 1-4-57 and since he was not in possession of the land as on 1-4-57 Page 21 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT statutory date, the deemed purchase shall have to be postponed to a date when he becomes entitled to possession and the possession is actually restored to him and that is the reason why the date of deemed purchase in case of such tenant is other than the one stipulated by Section 32(1). Similarly the legislature was faced with the cases of those tenants who had lost their possession of land either immediately before 1-4-57 or thereafter upto March 3, 1973 before any purchase price was fixed. In such cases additional remedy was provided to such tenants to approach the authority for possession within one year or the power is conferred upon the authority to take suo motu proceedings to restore the possession to such tenant. It may be noted that for suo motu proceedings to be initiated by the ALT no time limit is fixed. It is also necessary that the tribunal is satisfied that the tenant was illegally dispossessed of land of which he was in possession as a tenant and then the tribunal shall restore possession of land to'such tenant. Once the possession of land is restored to such tenant Sub-section (1B) of Section 32 stipulates that thereafter provisions of Section 32A to 32R shall apply and the tenant shall be deemed to have purchased the land as and when land is restored to him. Strictly literally Sub-section (1B) of Section 32 intended to deal with the cases of dispossession of tenant sub-sequent to 1-4-57 because those who were dispossessed prior to 1- 4-57 their cases would squarely fall within the provisions of Section 32(1A). to the extent that Page 22 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT Section 32(1B) refers to dispossession of tenant before June 15, 1955 to 1-4-57 undoubtedly there is an overlapping or tautology and it is difficult for this court to comprehend as to why the legislature having enacted Section 32(1A) made reference to those tenants who were dispossessed between June 15, 1955 to 1-4-57, Barring this obvious tautology rest of the provision of Section 32(1B) is undoubtedly enacted to extend the helping hand to those tenants who were dispossessed of land in question subsequent to 1-4-57. In case of such tenants provisions of Section 32(1B) would operate."
30. Section 121 of the Gujarat Town Planning Act, 1976 reads as under :-
"The provisions of the Bombay Tenancy & Agricultural Lands Act, 1948 and the Bombay Tenancy Vidarbha (Region & Kutch Area) Act, 1958, as in force for the time being, shall not apply to any area included in a town planning scheme under this Act,"
31. Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 (now Gujarat Tenancy and Agricultural Lands Act) reads as under :-
4. Persons to be deemed tenants :- A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not :-Page 23 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT
(a) a member of the owner's family; or
(b) a servant on wages payable in cash or kind
but not in crop share or a hired labourer
cultivating the land under the personal
supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession."
32. Considering the above referred decisions as well as statutory provisions along with the amendment, it becomes clear that Legislature thought it fit to give full effect to the beneficial legislation being the Bombay Tenancy and Agricultural Lands Act, 1948 and all the provisions of the Tenancy Act which apply even in cases where the land is within the limits of Municipal Boroughs and/or within the limits of Town Planning Scheme and thereby Section 43C of the Bombay Tenancy Act as well as Section 121 of the Gujarat Town Planning Act have been rightly deleted by the Amending Act as mentioned above and the same has also been decided by the Division Bench of this Court, wherein the very petitioner was the petitioner before this Court and as such, all orders right from the first order of the Mamlatdar carried in appeal before the Deputy Collector and carried further in revision before the Gujarat Revenue Tribunal, after order of remand by the Deputy Collector wherein the issue of the respondent being 'tenant' was not disturbed. After the remand order, all three authorities have held in favour of the tenants, and therefore, all the orders are passed in favour of the tenant after considering each and every argument of the petitioner Trust.
33. Considering the overall facts and circumstances of the case, I am of the opinion that the authorities below have committed no error in passing the impugned orders and when there are Page 24 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019 C/SCA/5342/2017 CAV JUDGMENT concurrent findings of fact by all the authorities below, I am of the opinion that no interference is required in the impugned orders while exercising powers under Article 227 of the Constitution of India. Hence, the present petition fails and is accordingly dismissed. Notice is discharged. Interim relief granted earlier stands vacated.
Sd/-
(A.J.DESAI, J)
34. Upon pronouncement of the judgment, Mr. Vishal C. Mehta, learned advocate appearing for the petitioners has prayed to extend the ad-interim relief. Though objected by learned advocate appearing for the respondent No.1, since ad-interim relief was granted earlier and the same is in existence till date, the same is hereby extended for a period of four weeks.
Sd/-
(A.J.DESAI, J) SAVARIYA Page 25 of 25 Downloaded on : Mon Aug 26 20:58:17 IST 2019