Gujarat High Court
Rasiklal Revashanker Jani & vs Kalaji Keshaji Since Deceased & 3 on 25 January, 2017
Equivalent citations: AIR 2017 (NOC) 273 (GUJ.)
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/6909/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6909 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RASIKLAL REVASHANKER JANI & 1....Petitioner(s)
Versus
KALAJI KESHAJI SINCE DECEASED & 3....Respondent(s)
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Appearance:
DECESED LITIGANT, ADVOCATE for the Petitioner(s) No. 1 - 2
MR DHIRENDRA MEHTA, ADVOCATE for the Petitioner(s) No. 1.1 - 1.8 , 2.1 -
2.3
MR SHAIVANG D MEHTA, ADVOCATE for the Petitioner(s) No. 1.1 - 1.8 , 2.1 -
2.3
MR. VENUGOPAL PATEL, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 3
MR. MITHIL MEHTA, ADVOCATE FOR MR SAURABH J MEHTA, ADVOCATE
for the Respondent(s) No. 1.1 - 1.2
RULE SERVED for the Respondent(s) No. 1.3.1 - 1.3.2 , 2.1 , 4
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C/SCA/6909/2001 JUDGMENT
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 25/01/2017
ORAL JUDGMENT
1. The order dated 26.11.1998 (Annexure 'G') passed by the Gujarat Revenue Tribunal in Revision Application TEN B.A. 429/1990 preferred by the respondent No. 1 Kalaji Keshaji against the order dated 16.06.1990 passed by the Collector (Annexure 'F') in the Tenancy Appeal No. 151 of 1988, is under challenge before this Court.
2. The brief facts giving rise to the present petition are that the land bearing Survey No. 341 admeasuring 2 acres 35 gunthas situated at village Udan belonged to one Somji Bhaiji and Revaji Sankaji. The respondent No. 1 Kalaji Keshaji had claimed tenancy rights in respect of the said land, however in the proceedings initiated by the Mamlatdar and ALT under Section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act') being Tenancy Case No. 24/A-B Udan, the said Kalaji Keshaji made a statement on affidavit that he was not willing to purchase the said land. The Mamlatdar and ALT therefore vide the order dated 04.10.1960 held the purchase in respect of the said land along with other lands as ineffective. It appears that thereafter the Additional Mamlatdar initiated the proceedings under Section 32P of the said Tenancy Act in which the respondent No. 2 Manaji Ranaji, the legal Page 2 of 11 HC-NIC Page 2 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT representatives of Revaji Sankaji had stated that the respondent No. 1 Kalaji Keshaji had surrendered the land to him and that he was in occupation, possession and cultivation of the said land. The Additional Mamlatdar therefore vide the order dated 20.09.1962 (Annexure 'B') held that since the Kalaji Keshaji had voluntarily surrendered his possession to the landowner, the respondent No.2 Manaji Ranaji, the nephew of the original landowner deceased Revaji Sankaji was permitted to retain the land in question for personal cultivation subject to Section 15 of the said Act(Annexure 'B').
3. It further appears that after 20 years of the said orders passed by the Mamlatdar and Additional Mamlatdar, the respondent No. 1 Kalaji Keshaji made an application to the Mamlatdar under Section 32G of the said Act praying to allot the said land to him stating inter alia that he was willing to pay the purchase price. The Mamlatdar and ALT thereafter vide the order dated 08.02.1982 fixed the purchase price in respect of the said land, against which the petitioner had filed an appeal being Tenancy Appeal No. 80 of 1982 under Section 74 of the said Act before the Deputy Collector. The said appeal came to be partly allowed by the Deputy Collector vide the order dated 11.08.1982 whereby the Deputy Collector set aside the order dated 08.08.1982 passed by the Mamlatdar and ALT, however directed to initiate the proceedings under Section 84C of the said Act. It appears that thereafter the petitioner Rasiklal purchased the land Page 3 of 11 HC-NIC Page 3 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT from the landowner by way of registered sale deed executed on 10.08.1983. Thereafter, the Mamlatdar and ALT initiated the proceedings under Section 84C against the petitioner Rasiklal and held inter alia that the purchase of land by the petitioner Rasiklal was invalid and the original tenant Kalaji Keshaji was entitled to purchase the land as per the priority list. The Mamlatdar, also fixed the price of the land as Rs. 1,138/- and directed to dispose of the said land in favour of the said Kalaji Keshaji (Annexure 'E').
4. Being aggrieved by the said order, the petitioner Rasiklal, one Shardaben and respondent No.2 Manaji Ranaji filed the Tenancy Appeal No. 151 of 1988 before the Deputy Collector, which appeal came to be allowed vide the order dated 16.06.1990 (Annexure 'F'). The aggrieved respondent Kalaji Keshaji having preferred the Revision Application being No. TEN B.A. 429 of 1990 under Section 76 of the said Tenancy Act, the Gujarat Revenue Tribunal vide the order dated 26.11.1998 allowed the same and set aside the order dated 16.06.1990 passed by the Deputy Collector. Hence, the aggrieved petitioners have preferred the present petition.
5. The bone of contention raised by the learned counsel Mr. Dhirendra Mehta for the petitioners is that the original landowner having been permitted to retain the land, on the original tenant Kalaji Keshaji having surrendered his tenancy under Section 15 of the said Act, and there being no restriction on the sale Page 4 of 11 HC-NIC Page 4 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT of the subject land, the purchase of land by the present petitioners could not be said to be in violation of any of the provisions contained in the Tenancy Act, and therefore, the entire proceedings initiated under Section 84C of the said Tenancy Act were unwarranted. He has relied upon the provisions contained in section 15 as they existed prior to the amendment in 1973 to submit that the land was permitted to be retained by the landowner as the tenant had legally surrendered his tenancy to the landowner and that the said surrender was never challenged by the said tenant Kalaji Keshaji. According to him, the Deputy Collector had rightly held that the provisions contained in Section 32(P)(2) existing as on the date were not applicable to the facts of the present case.
6. However, the learned advocate Mr. Mithil Mehta for learned advocate Saurabh Mehta for the respondents
- heirs of the original tenant Kalaji submitted that the petitioners had failed to challenge the order dated 11.08.1982 passed by the Deputy Collector directing the Mamlatdar to initiate the proceedings under Section 84C of the said Tenancy Act as the landowner had transferred the possession of the land to the petitioners. According to him, the original tenant having shown his willingness to purchase the land, though after 20 years, he was entitled to purchase the same and the Mamlatdar and ALT having fixed the price and allotted the subject land to the tenant holding that the sale of land in favour of the Page 5 of 11 HC-NIC Page 5 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT present petitioners was invalid, the Tribunal had rightly set aside the order passed by the Deputy Collector. Placing reliance on the decision of this Court in the case of Savailal Chhaganlal Dhobi and others versus Gamabhai Chhaganbhai Bhill and others reported in 1994(1) GLH (U.J.) 6, he submitted that if the two conditions as contained in the Section 15, were not satisfied, the surrender could not be said to be valid and legal. He has also relied upon the decision in the case of Jivraj Jutha versus State of Gujarat and others reported in 1984 GLH 874, to submit that the statutory priority should be given to the tenant to purchase the land under Section 32(P) (2) (c) of the said Act.
7. In the instant case, it appears that the statement made by the respondent Kalaji Keshaji - original tenant on the affidavit before the Mamlatdar, Dehgam that he was not willing to purchase the land in question along with the other lands, was never disputed by him. It is also not disputed that accordingly the Mamlatdar vide the order dated 04.10.1960 had held the deemed purchase of the subject land as ineffective on the basis of the said statement made by the respondent Kalaji. Neither the said statement was ever rebutted nor the said order dated 04.10.1960 passed by the Mamlatdar holding the purchase of land as ineffective, was ever challenged by the said Kalaji. Subsequently, the Additional Mamlatdar vide the order dated 20.09.1962 permitted the respondent No. 2 Manaji Ranaji, the nephew and Page 6 of 11 HC-NIC Page 6 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT legal representative of the deceased landowner Revaji Sankaji, to retain the possession of the land in question subject to the provisions of section 15 of the Tenancy Act, as the said Kalaji had voluntarily surrendered his interest in the land in question and as his tenancy had stood terminated. At this juncture, it would be relevant to reproduce the Section 15 as it existed prior to amendment in 1973.
"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."
8. From the bare reading of the aforestated provisions, it transpires that when the tenant surrendered his tenancy, the landowner was entitled to retain the land subject to the conditions as provided in Section 31 and 31A of the said Act, so far as they were applicable. Now if the conditions contained in section 31 and 31A as they existed at the relevant Page 7 of 11 HC-NIC Page 7 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT time are seen, none of the conditions restricted the right of the landowner to transfer or sell the land in question. Of course the said respondent No. 2 Manaji Ranaji was permitted to retain the said land for the purpose of his personal cultivation, however, the said order dated 20.09.1962 did not impose any other conditions, except that the said retention was subject to Section 15 as it existed at the relevant time. It is also not disputed that the said order dated 20.09.1962 also remained unchallenged at the instance of respondent Kalaji. However, after 20 years of the said order, the said Kalaji made an application to the Mamlatdar on 10.10.1980 for fixing the price of the said land under Section 32G, and the Mamlatdar fixed the price vide order dated 08.02.1982. The petitioner Rasiklal therefore challenged the said order by filing an appeal which came to be allowed by the Deputy Collector vide the order dated 11.08.1982, whereby he set aside the order dated 08.02.1982, however, held that the transfer of possession of land by the respondent No. 2 Manaji in favour of the petitioner was illegal, there being violation of Section 32(P)(7) and 32(P)(8) of the said Act, entailing the proceedings under Section 84C of the said Act.
9. At this juncture, it is pertinent to note that the said provisions contained in Section 32(P)(2)(7) and (8) were also not there at the relevant time when Additional Mamlatdar passed the order dated 20.09.1962 permitting the respondent No. 2 to retain the land subject to Section 15 as it existed then. The said Page 8 of 11 HC-NIC Page 8 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT provisions were incorporated in Section 32(P)(2) by the Act 36 of 65 with effect from 01.02.1966 only.
10. Hence, there being no restriction against the transfer or sale of the land in any of the provisions as they existed at the relevant time in the Tenancy Act, the findings recorded by the Deputy Collector in its order dated 11.08.1982 that there was violation of Section 32(P)(7) and 32(P)(8) were absolutely misconceived. It is true that the said order dated 11.08.1982 had remained unchallenged at the instance of the petitioners, and therefore the Mamlatdar and ALT initiated the proceedings under Section 84C against the petitioners. However, in the said proceedings also, the Mamlatdar had held the sale in favour of the petitioner as invalid merely on the ground that the petitioners had not challenged the order dated 11.08.1982 passed by the Deputy Collector. The said order of Mamlatdar and ALT was also without any application of mind and in utter disregard of the provisions contained in the Tenancy Act as they existed prior to 1965 when the order dated 20.09.1962 was passed by the Additional Mamlatdar.
11. The Deputy Collector in the Appeal No. 151 of 1988 had rightly held vide the order dated 16.06.1990 that the said provisions of Section 32(P) as relied upon by the Mamlatdar which came into existence after 1965, did not apply to the facts of the case. However, the Gujarat Revenue Tribunal has set aside the said order of Deputy Collector without verifying Page 9 of 11 HC-NIC Page 9 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT the legal position. In the opinion of the Court, the impugned order passed by the Tribunal being based on misconception of facts and law deserves to be set aside. As discussed herein above, the respondent Kalaji Keshaji having duly surrendered his interest in the land in question as back as in the year 1960 as per the order dated 04.10.1960 passed by the Mamlatdar, and thereafter the landowner having been permitted to retain the land subject to the provisions contained in section 15 as it existed then, by the Additional Mamlatdar as per the order dated 11.08.1982, and the said orders having remained unchallenged by the respondent - tenant, it did not lie in the mouth of the respondent - Kalaji to say after 20 years that he was willing to pay the purchase price of the subject land. There being no violation of the provisions contained in Section 32(P) of the said Act, as discussed herein above, the very initiation of the proceedings against the petitioners under Section 84C were misconceived.
12. Since the surrender of land by the respondent Kalaji Keshaji in favour of the original landowner having never been challenged by him, and since the order dated 04.10.1960 passed by the Mamlatdar treating the purchase of subject land as ineffective purchase and the order dated 20.09.1962 passed by the Additional Mamlatdar permitting the respondent No. 2 Manaji Ranaji to retain the land in question having also not been challenged by the said Kalaji, the decisions relied upon by the learned advocate Mr. Page 10 of 11 HC-NIC Page 10 of 11 Created On Sat Aug 12 22:07:20 IST 2017 C/SCA/6909/2001 JUDGMENT Mehta for the respondent - tenant have no application to the facts of the present case.
13. In that view of the matter, the impugned order dated 26.11.1998 passed by the Gujarat Revenue Tribunal being illegal and perverse is quashed and set aside. The petition stands allowed. Rule is made absolute.
(BELA M. TRIVEDI, J.) Amar Page 11 of 11 HC-NIC Page 11 of 11 Created On Sat Aug 12 22:07:20 IST 2017