Gujarat High Court
Upendrabhai Babubhai Patel vs State Of Gujarat on 9 May, 2018
Author: J.B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/19062/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19062 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
NO
thereunder ?
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UPENDRABHAI BABUBHAI PATEL & 2.. Petitioners
Versus
STATE OF GUJARAT & 6... Respondents
==========================================================
Appearance:
MR BB NAIK, SENIOR ADVOCATE WITH MR JIGAR M PATEL(3841) for the
PETITIONER(s) No. 1,2,3
MR RAKESH PATEL, AGP ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP(99) for the RESPONDENT(s) No. 1
MR SATYEN N. THAKKAR, ADVOCATE WITH MR.NISARG P RAVAL(7262)
for the RESPONDENT(s) No. 4,4.2,4.3,4.4,4.5,4.6,4.7,4.8
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/05/2018
CAV JUDGMENT
1 By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated Page 1 of 36 C/SCA/19062/2016 CAV JUDGMENT 25th July 2016 passed by the Gujarat Revenue Tribunal in Revision Application No.874 of 1994 preferred by the legal heirs of the original tenants i.e. the respondents Nos.4/1 to 4/8 herein challenging the order dated 21st April 1986 passed by the Deputy Collector, Kheda in Tenancy Revision Application No.677 of 1984 as well as the order dated 27th November 1979 passed by the Mamlatdar (A.L.T.), Anand in Tenancy Case No.356 of 1979.
2 It appears from the materials on record that the Mamlatdar and A.L.T., Anand, vide order dated 27th November 1979, closed / dropped the inquiry initiated by him under Section 32(1)(B) of the Gujarat Tenancy and Agricultural Land Act, 1947 in respect of the parcels of land bearing survey No.1995 admeasuring about 1 Acre and 11 Gunthas situated in village: Bakrol of Taluka: Anand. The Mamlatdar and A.L.T., Anand held that one Mala (Zalabhai) Sardarbhai, the predecessor of the respondents Nos.4/1 to 4/8 was not the tenant of the subject land, and in such circumstances, his heirs were not entitled to inherit any tenancy rights in respect of the parcels of land.
3 It appears that the subject land was of the ownership of one Patel Kasibhai Gokalbhai. Patel Kasibhai is the predecessorintitle of the petitioners herein. He was not in a position to cultivate the subject land personally. The name of one Zalabhai Sardarbhai was figuring in the revenue records in respect of the subject land. However, his name came to be deleted vide entry No.3073.The Mamlatdar and A.L.T., Anand initiated an inquiry under Section 32(1)(B) of the Act, 1948 by issuing notice dated 19th November 1979 upon Malabhai Sardarbhai.
4 In the course of the aforesaid inquiry, it came to the notice of the Mamlatdar and A.L.T., Anand that Malabhai Sardarbhai had passed Page 2 of 36 C/SCA/19062/2016 CAV JUDGMENT away and his name was deleted from the revenue record in respect of the concerned parcels of land. The Mamlatdar and A.L.T., Anand, having recorded a finding that the heirs, were not entitled to get the benefit of the provisions of Sections 40 and 32(1)(B) of the Act, 1948, closed the inquiry vide order dated 27th November 1979.
5 The aforesaid order dated 27th November 1979 passed by the Mamlatdar and A.L.T., Anand was taken up by the Deputy Collector, Kheda in a suo motu review. The said review proceedings culminated in the Tenancy Case No.678 of 1984.
6 Upon issuance of notice by the Deputy Collector, Kheda in the Tenancy Case No.677 of 1984, Manguben, the widow of Mavabhai Sardarbhai, appeared in the aforesaid proceedings before the Deputy Collector, Kheda and gave an oral statement that her husband had passed away about thirty years back and her fatherinlaw had also passed away about twenty years back. She further stated that her husband Mavabhai had never cultivated the subject land during his lifetime. In view of such statement made by Manguben, the Deputy Collector, Kheda dropped the suo motu proceedings and affirmed the order dated 27th November 1979 passed by the Mamlatdar in the Tenancy Case No.356. The respondents Nos.4/1 to 4/8, after a lapse of about eight years, challenged the order dated 21st April 1986 passed by the Deputy Collector, Kheda in the Tenancy Revision Application No.677 of 1984 before the Gujarat Revenue Tribunal by filing a revision application. The said revision application was registered as the Revision Application No.874 of 1994.
7 The revision application came to be allowed by the Tribunal. While allowing the revision application, the Tribunal observed as under:
Page 3 of 36 C/SCA/19062/2016 CAV JUDGMENT"The arguments and documentary evidences produced by the parties have been taken into consideration. Accordingly, it is the argument of the applicants that the procedure of Tenancy Revision no. 677/84 was conducted after the delay of four years. This order is clearly considered as time barred because the jurisdiction of revision under section - 76A of the Tenancy Act, should be utilized within one year. As procedure was not initiated in this case within one year time limit, the procedure of tenancy revision started after one year is considered unlawful as per the established principles of the Hon'ble High Court. It is clearly held in the judgement of the Hon'ble High Court of Gujarat reported in 1995 (1), GLH, page - 785 (Thakorbhai Tribhovandas and others v/s Government of Gujarat) that the powers of revision should be exercised within one year time limit from the date of order by calling for the record and examination of the same. If this is not done, the procedure is illegal. According to this principle, the order passed by Deputy Collector (Ja.Su) Kheda in Tenancy Revision no. 677/84 is considered time barred and held as revocable.
Zalabhai Sardarbhai Parmar grandfather of the applicants, died on 30/07/63, whereas in case of Tenancy Case no. 356, the Mamlatdar and Krushipanch no.2, Anand passed order on 27/11/79. This order is clearly against the deceased person. The applicants have cited the judgement reported in 1995 (1) GLR, page no. 850 in their argument and submitted that the order passed in favour or against the deceased is considered nullity. This fact has not been considered by the Deputy Collector (Ja.Su), Kheda. The procedure conducted by Deputy Collector (Ja.Su.), Kheda in Tenancy Revision no. 677/84 is also ultra vires. Because, while exercising the powers of tenancy revision, only the record of the lower court should be examined. Whereas, the Deputy Collector (Ja.Su.), Kheda recorded the statement of Manguben for the family of the tenant. Moreover, the statement of land owner has been recorded. The Page 4 of 36 C/SCA/19062/2016 CAV JUDGMENT statements of the parties should not be recorded in revision case and therefore, the decision taken on the basis of the same is considered illegal. Therefore also, the order passed in Tenancy Revision no. 677/84 is liable to be revoked.
Entry no. 90 was registered in record on 16/03/53 that Zalabhai Sardarbhai Parmar, grandfather of the petitioners, was a tenant. Thereafter, as the tenant died, succession entry no. 277 was made. It is mentioned that the name of grandfather of the tenant was deleted vide entry no. 3070 and procedure done regarding this cannot be considered lawful. If the tenants remain absent during the hearing, order is passed to hold the purchase ineffective. However, in this case the tenant had died at the time of the procedure and accordingly, the procedure against the deceased person is considered unlawful. The name of tenant was deleted on 25/02/65 vide entry no. 3070; however, tenant Zalabhai Sardarbhai Parmar died on 30/07/63 and therefore, entry no. 3077 is considered as the order against the deceased person. The fact of the above mentioned argument for the applicant is coherent with the fact on record and therefore, it is acceptable. Considering the written arguments for the applicant, as it is found that the present Revision Application is liable to be granted, the following order is passed.
O R D E R The present Revision Application no. T.E.N./B.A./874/94 is granted.
The order passed by Deputy Collector (Ja.Su.), Kheda on 21/04/86 in Tenancy Revision no. 677/84 is revoked.
The order passed by Mamlatdar and Krushipanch no.2, Anand on 27/11/79 in Tenancy Case no. 356 is revoked. The case is remitted to the Mamlatdar and Krushipanch no. 2, Anand to decide the Page 5 of 36 C/SCA/19062/2016 CAV JUDGMENT purchase price of the land in question."
8 Being dissatisfied with the order passed by the Tribunal, the petitioners are here before this Court with this application under Article 227 of the Constitution of India.
9 Mr. B.B. Naik, the learned senior counsel appearing with Mr. Jigar M. Patel, the learned counsel for the applicants vehemently submitted that the Tribunal committed a serious error in allowing the revision application. It is submitted that the Tribunal ought not to have disturbed the concurrent findings recorded by the Mamlatdar as well as the Deputy Collector. It is submitted that the Tribunal ought to have first addressed itself on the aspect of delay. Without addressing itself on the aspect of delay, the Tribunal could not have gone into the merits of the case. It is submitted that the Tribunal, by ignoring or overlooking the delay of eight years in filing the revision application, exceeded the jurisdiction.
10 It is submitted that the Tribunal erred in law in not considering that even in respect of the proceedings (Tenancy Case No.372) initiated under Section 32G of the Gujarat Tenancy and Agricultural Lands Act, 1948 by the Mamlatdar (A.L.T.), Anand, Mavabhai Sardarbhai, who was the predecessor of the respondents Nos.4/1 to 4/8, was not declared to be a tenant in respect of the concerned parcels of land. In view of the aforesaid aspect of the matter, the Gujarat Revenue Tribunal was not justified in setting aside the order dated 27th November 1979 passed by the Mamlatdar (ALT), Anand in the Tenancy Case No.356 of 1979.
11 It is submitted that the Tribunal erred in law in not considering that the respondents Nos.4/1 to 4/8 had not produced any evidence worth the name either before the Mamlatdar (A.L.T.), Anand in the Page 6 of 36 C/SCA/19062/2016 CAV JUDGMENT proceedings of the Tenancy Case No.356 of 1979 nor before the Deputy Collector, Kheda in the Tenancy Case No.677 of 1984 to show or establish that Zala (Mavabhai) Sardarbhai was in possession of the subject land. The respondents Nos.4/1 to 4/8 miserably failed to establish before the Mamlatdar (A.L.T.), Anand that Mavabhai Sardarbhai was in possession and cultivating the concerned parcels of land. On this count, the Tribunal was not justified in recording a finding that Mavabhai Sardarbhai was the tenant in respect of the concerned parcels of land, and upon his death, the respondents Nos.4/1 to 4/8 were entitled to inherit the tenancy rights in respect of the subject land.
12 It is submitted that the Tribunal was not justified in law in setting aside the order dated 27th November 1979 passed by the Mamlatdar (ALT), Anand in the Tenancy Case No.356 of 1979 and the order dated 21st April 1986 passed by the Deputy Collector, Kheda in the Tenancy Revision Application No.677 of 1984 on the ground that the two orders are a nullity inasmuch as Mavabhai Sardarbhai was not alive on the date on which the aforesaid orders were passed. It is submitted that the aforesaid finding recorded by the Tribunal is not sustainable in the eyes of law inasmuch as his heirs were represented by Manguben in the proceedings. Manguben, in fact, appeared before the Deputy Collector, Kheda and gave a statement that her husband had passed away about thirty years back and her fatherinlaw had passed away about twenty years back. She even stated that her husband had never cultivated the subject land. In view of the said admission of Manguben before the Deputy Collector, Kheda, the Tribunal was not justified in law in believing the case of the respondents Nos.4/1 to 4/8. It is not even the case of Manguben that her statement was recorded by practicing fraud upon her. In view of the same, the Tribunal ought to have believed the statement of Manguben recorded by the Deputy Collector, Kheda in the Page 7 of 36 C/SCA/19062/2016 CAV JUDGMENT proceedings of the Tenancy Revision Application No.677 of 1984, and accordingly, ought to have rejected the revision application of the respondents Nos.4/1 to 4/8.
13 It is submitted that the view taken by the Tribunal to the effect that the Deputy Collector, Kheda, while exercising suo motu powers, the was not competent to record the statement of Manguben. Such a view is palpably wrong. There is no provision in the Gujarat Tenancy and Agricultural Lands Act, 1948, prohibiting the Deputy Collector, Kheda, exercising powers of suo motu revisional jurisdiction from recording the statement of any person.
14 It is submitted that the Tribunal committed material irregularity by misconstruing the mutation entry No.3070, whereby the name of Mavabhai Sardarbhai was deleted from the revenue record in respect of the subject land. The Tribunal proceeded on the basis as if by virtue of the aforesaid entry No.3070, Mavabhai Sardarbhai lost his status as a tenant in respect of the subject land. However, if a recourse is made to the aforesaid entry No.3070, it becomes clear that the said entry was mutated on account of the death of Mavabhai Sardarbhai.
15 In such circumstances referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the impugned order be quashed.
16 On the other hand, this application has been vehemently opposed by Mr. Satyen N. Thakkar, the learned counsel appearing for the respondents Nos.4/1 to 4/8. According to Mr. Thakkar, the father of the respondents Nos.4/1 to 4/8 namely Zalabhai Sardarbhai Parmar was a protected tenant of the subject land. He was the original cultivator of the Page 8 of 36 C/SCA/19062/2016 CAV JUDGMENT land. It is submitted that a revenue entry to that effect was also mutated in the year 195051 showing the name of the Zalabhai Sardarbhai Parmar as the tenant and his name remained in the revenue record upto 196364. It is the case of the respondents Nos.4/1 to 4/8 that indisputably, their father was in possession and cultivating the subject land on the tillers day i.e. 1st April 1957 as a protected tenant of the subject land and even cultivated till the year 196263. According to Mr. Thakkar, even as on date, the possession of the subject land is with the heirs of the original tenant and by operation of law, they are entitled to get the subject land. According to Mr. Thakkar, the Tribunal could not be said to have committed any error much less an error of law in passing the impugned order. It is submitted that the Revision Application No.874 of 1994 was preferred by the respondents Nos.4/1 to 4/8 under Section 76 of the Act substantially on the following grounds:
"(1) When the Mamlatdar (ALT) initiated proceedings, at that time, the original tenant Zalabhai Sardarbhai had already expired.
(2) The Mamlatdar (ALT) had wrongly issued notice in the name of a dead person and concluded the proceedings against him. Therefore, any proceedings against a dead person are void ab initio.
(3) The Mamlatdar (ALT) had never issued any notice to the legal heirs of the deceased tenant, though, vide mutation entry No.2777 dated 18.06.1963, their names were already mutated in the revenue record of the subject land.
(4) In the earlier revision proceedings initiated under Section 76 before the Deputy Collector in the revision Case No.377 of 1984, the Collector, vide order dated 21st April 1984 had closed the Page 9 of 36 C/SCA/19062/2016 CAV JUDGMENT proceedings without any reason whatsoever and without issuing any notice upon the respondents Nos.4/1 to 4/7 i.e. the legal heirs of the original tenant despite being aware that the heirs are on record since 1963.
(5) The Deputy Collector had not considered and had completely ignored the documentary evidence being the revenue records and mutation entries by which the names of the respondents Nos.4/1 to 4/8 were mutated in the revenue record or nor have shown diligence while closing the revision proceedings.
(6) As per the settled legal provision, there is no time limit prescribed for preferring a revision application. However, the orders passed by the Mamlatdar (ALT) as well as by the Deputy Collector in the Revision Case No.677 of 1984, were never communicated to the legal heirs of the original tenant i.e. the respondents Nos.4/1 to 4/8 and therefore, they were not aware about any such orders passed.
However, when they came to know about the orders, they immediately applied for a certified copy on 25th August 1994 (delivered on 26th August 1994) and thereafter, filed the revision application before the Collector. Therefore, there was no delay in preferring the revision application before the Gujarat Revenue Tribunal."
17 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.
18 It appears from the materials on record that in the suo motu Page 10 of 36 C/SCA/19062/2016 CAV JUDGMENT tenancy proceedings being the Tenancy Case No.356 of 1979 initiated by the Mamlatdar, Anand, no notice was ever issued upon any of the legal heirs of the deceased Zalabhai Parmar i.e. the respondent No.4/1 to 4/8 and they were, at no point of time, intimated about any such proceedings with respect to the subject land. It also appears that the order passed in the said proceedings dated 27th November 1979 was never served nor communicated to the legal heirs. No reasons have been assigned by the Mamlatdar as to why the legal heirs were not entitled to claim the benefit though the order clearly records that Zalabhai Parmar passed away in the year 1963, and thereafter, the names of the legal heirs were on the record on 18th September 1963 and the revenue entry No.2777 also came to be mutated in that regard.
19 I fail to understand that if the proceedings were closed in 1965 against Zalabhai Parmar and his name was deleted, then there was no good reason to initiate the same proceedings again in 1979.
20 It appears that when the respondents Nos.4/1 to 4/8 came to know about the orders, they immediately applied for the certified copy on 25th August 1994, which came to be delivered on 26th August 1994, and thereafter, the Revision Application No.874 of 1994 was filed before the Gujarat Revenue Tribunal. Having regard to the facts of this case, the aspect of delay, in my opinion, pales into insignificance.
21 I do not find any merit in the contention of the learned counsel appearing for the petitioners that the Tribunal erred in law in not considering an important question of fact that even in respect of the proceedings (Tenancy Case No.372) initiated under Section 32G of the Act, 1948 by the Mamlatdar, the predecessor of the respondents Nos.4/1 to 4/8 was not declared as tenant. It appears from the materials on Page 11 of 36 C/SCA/19062/2016 CAV JUDGMENT record that the original tenant i.e. Zalabhai Sardarbhai Parmar had cultivated the subject land in his capacity as a tenant from the year 195051 to 196364 and vide the revenue entry No.940 dated 16 th March 1953, Zalabhai Sardarbhai Parmar came to be declared as a protected tenant of the subject land and the necessary corresponding entry to that effect was also made into the village Form No.7, 7/A and 12. It is pertinent to note that the said original tenant expired on 18th September 1963, the names of the legal heirs of deceased Zalabhai Sardarbhai Parmar were mutated and entered in the revenue record as a tenant in succession of the deceased Zalabhai Sardarbhai Parmar. Thus, as per the revenue record being the village Form No.7, 7/A and 12 and Form No,6, the names of the respondents Nos.4/1 to 4/8 came to be entered in the revenue records as the legal heirs of the protected tenant, and therefore, they are entitled to the benefit of Section 40 of the Bombay Tenancy and Agricultural Lands Act, 1948.
22 Despite the aforesaid facts, the concerned revenue authority initiated tenancy proceedings being the Tenancy Case No.372 of 1965 against Zalabhai Sardarbhai Parmar (since deceased) and purportedly passed an order dated 25th February 1965 against a dead person though the names of the heirs of the deceased Zalabhai Sardarbhai Parmar were already brought on record on 18th September 1963 vide mutation entry No.2777, and therefore, on the day on which the said order dated 25th February 1965 came to be passed, the respondents Nos.4/1 to 4/8 were already on record as tenants in succession of the deceased Zalabhai Sardarbhai Parmar, and yet, no notice was issued to them.
23 The purported order dated 25th February 1965, by which the name of the original tenant came to be deleted, was exfacie a nullity, the same having been passed against a dead person i.e. Zalabhai Parmar Page 12 of 36 C/SCA/19062/2016 CAV JUDGMENT though the legal heirs of the deceased original tenant i.e. the respondents Nos.4/1 to 4/2 were indisputably brought on record of the subject land on 18th September 1963 and the said order dated 25th February 1965 was passed without issuing any notice upon the legal heirs i.e. the respondents Nos.4/1 to 4/8 against the deceased person.
24 I am not impressed by the submission of the learned senior counsel that the respondents Nos.4/1 to 4/8 failed to produce any evidence worth the name before the Mamlatdar (ALT), Anand as well as before the Deputy Collector, Kheda to show that Zalabhai Parmar was in possession and was cultivating the land in question. The village Form No.7, 7/A and 7/12 and village Form No.6 clearly indicates that the original tenant Zalabhai Parmar was in possession of the land in question throughout from 195051 to 196364 and even after his demise on 30th July 1963, the names of his legal heirs i.e. the respondents Nos.4/1 to 4/8 were brought on record on 18th September 1964 vide mutation entry No.2777. The Tribunal, after a thorough perusal of all the relevant documents on record, passed the impugned order, which, in my opinion, needs no interference in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
25 I am not impressed by the submission of the learned senior counsel that the impugned order is not sustainable in law inasmuch as the heirs were represented by Manguben Zalabhai in the proceedings and she had appeared before the Deputy Collector, Kheda and had given her statement and in view of such an admission by Manguben before the Deputy Collector, the Tribunal was not justified in law in accepting the case of the respondents Nos.4/1 to 4/8. The argument of the learned senior counsel appearing for the applicants is that it is not the case of Manguben Parmar that her statement was recorded by practicing fraud Page 13 of 36 C/SCA/19062/2016 CAV JUDGMENT upon her, and therefore, the Tribunal ought to have believed the statement of Manguben recorded by the Deputy Collector, Kheda.
26 In the aforesaid context, the Deputy Collector took the order passed by the Mamlatdar (ALT) in the Tenancy Case No.356 in suo motu revision in Revision Case No.677 of 1998 and in the said proceedings, indisputably, no notice was issued upon the legal heirs of the original tenant, except the respondent No.1 i.e. Manguben Zalabhai Parmar and in the said proceedings, the Deputy Collector, while exercising powers under Section 76A, recorded the statement of Manguben Zalabhai. The said statement, by itself, would not validate the illegal order dated 27th November 1979 passed by the Mamlatdar (ALT), more particularly, when the other legal heirs were not heard, and therefore, the said statement would have no relevance in the eyes of law. Even otherwise, as per the settled legal position, it is only the Mamlatdar, under Section 70 of the Tenancy, who can decide whether a person is a tenant or not. The said statement could not have been recorded by the Collector, Anand while exercising revisional power. The termination of tenancy, by virtue of such oral statement, will have no relevance in the eyes of law if the procedure prescribed under Section 15 of the Tenancy Act is not followed. Such proceedings cannot be decided merely on the basis of the statement of a tenant.
27 I am also not impressed by the submission of the learned senior counsel appearing for the applicants that the Tribunal erred in taking the view that the Deputy Collector, Kheda, in exercise of his suo motu revisional jurisdiction, could not have recorded the statement of Manguben. In this regard, I may only say that the power to conduct an inquiry is conferred upon the Mamlatdar under Section 32(1B) read with Sections 17 and 17(1) of the Tenancy Act and whereas the Page 14 of 36 C/SCA/19062/2016 CAV JUDGMENT proceedings initiated under Section 76A is only revisional jurisdiction for satisfying the Revisional Authority as to the legality and validity of the judgment and order passed by the subordinate authority, and therefore, the Deputy Collector, while recording such a statement, could be said to have exceeded the scope of his revisional jurisdiction and therefore, the impugned order dated 25th July 2016 passed by the Tribunal is just, proper and in accordance with law.
28 In the case of Rahubha Jivubha vs. State of Gujarat [1995(1) GLR 805], a learned Single Judge of this Court in a proceeding arising under the Gujarat Agricultural Land and Ceiling Act, 1960, observed as under:
"4. In this connection a reference deserves to be made to the ruling of this Court in the case of Devishanker v. Jiviben reported in 1977 (XVIII) GLR 504. It has been held therein that a decree against or in favour of a dead man is nullity. It has come to be affirmed by the Division Bench of this Court in its ruling in the case of Jiviben Lavji v. Jadavji reported in 1977 (XVIII) GLR 883. By analogy the aforesaid rulings of this Court will be applicable in the instant case.
5. It cannot be gainsaid that a decree is a judicial order. What applies to a judicial order would apply with equal force to a quasijudicial order. A quasijudicial order against or in favour of a dead man would be a nullity."
29 A Division Bench of this Court in the case of Thakorbhai Tribhovandas Rao and others vs. the State of Gujarat [1995 (1) GLH 758], observed as under:
"It will be seen that no record can be called for by the Collector after the expiry of one year from the date of the order made by the Mamlatdar or the Tribunal, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of the proceedings of the Mamlatdar or Tribunal. The proviso to Section 76A would be applicable even in a case where a Reference is made by the State Government requiring the Collector to call for the record and proceedings for the Page 15 of 36 C/SCA/19062/2016 CAV JUDGMENT purpose of satisfying himself as to the legality or propriety of the order. The limitation prescribed by the proviso for the exercise of the revisional powers beyond the expiry of one year from the date of the order is clear and explicit and the Collector will have no revisional power to be exercised beyond the period of one year prescribed by the proviso to Section 76A. Therefore, the only contention which was raised on behalf of the petitioners against the validity of the impugned notices belatedly seeking to take up the orders of Mamlatdar and A.L.T passed in 1971, 1972, 1973 for Revision under Section 76A of the Act derserves to be accepted. The learned Counsel appearing for the respondents had hardly any answer to the mandatory provisions of the proviso to Section 76A prescribing the timelimit during which the power could be exercised for revising the orders of the Mamlatdar or the Tribunal. This petition, therefore, deserves to be allowed. The impugned notices issued by the Deputy Collector, Kheda in Tenancy Revision Nos. 183 to 224 dated 491981 seeking to revise under Section 76A, the orders made by the Mamlatdar or the Tribunal in 1971, 1972 and 1973 are hereby set aside. Rule is made absolute accordingly with no order as to costs. "
30 A Division Bench of this Court in the case of Motibhai Panchabhai Khristi vs. Maganbhai Desaibhai Patel [1981 GLR 107] held that the statutory tenancy of the deceased tenant enures for the benefit of his willing heirs and by Section 40, the heirs of the tenant are entitled to make an application under Section 32(1B) of the Act. I may quote the relevant paras as under:
"4. It may be stated at this stage that the present proceedings have been referred to us for deciding the only question whether benefit of Section 32(1B) of the Tenancy Act is available to the heirs of a deceased tenant dying subsequent to dispossession.
10. Section 32(1B) with which we are directly concerned in the present proceedings was inserted by Gujarat Act 5 of 1973 and it reads as under:
"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 thereof 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 land or any part thereof and such land or part thereof is in the possession of the landlord or his successorininterest on the said date and such land Page 16 of 36 C/SCA/19062/2016 CAV JUDGMENT or part thereof is not put to a nonagricultural use on or before the said date, than the Mamlatdar shall, notwithstanding anything contained in the said Section 29 or any other provision of this Act either suo 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 there of shall be taken from the possession of the landlord, or, as the case may be, his successor in interest, and shall be restored, to 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 thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on; which such land or, as the case may be, part thereof is restored to him."
11. It is thus clear that under Section 32(IB), two terminal points are earmarked. The concerned tenant must be in possession of the land in question on the appointed day. Appointed day is denned by Section 2(2B) of the Tenancy Act as 1561955, and such a tenant should have been dispossessed contrary to the provisions of the Tenancy Act by the landlord before the specified date, which is defined by Section 2(16C) as the date of coming into force of the Gujarat Amendment Act, 1972, that is331973. If such a tenant is dispossessed during the aforesaid period, then a right is given to apply for restoration of possession of the land and the said right is given notwithstanding anything contained in Section 29 or any other provisions of the Act. Even suo motu, Mamlatdar can exercise his power under Section 32(IB) once the relevant facts are brought to his notice. If it is established that the concerned tenant was dispossessed illegally by the landlord during the relevant period as provided by Section 32(IB), the Mamlatdar can restore possession back to him and on such restoration, the tenant can be considered to be a deemed purchaser and provisions of Sections 32A to 32R would apply to such a purchase. Thus, it is very clear that a tenant who was in possession on the appointed day and who lost possession of the land held by him illegally, has been given legal right to apply for restoration of possession to the Mamlatdar as per the aforesaid provision. But he must show that he was dispossessed prior to the specified date. A tenant who was in possession of the land in question on the appointed day, that is 1561955 and who lost possession of the land before the specified date, on account of an illegal act of (he landlord cannot be said to have ceased to be a tenant of the land. His tenancy rights subsisted but possession of the land was illegally lost. Section 32(IB) caters to the need of such a situation and seeks to restore the possession of such land to the tenant. It is further pertinent to note that from the operation of Section 32(IB) on account of nonobstinate clause, Section 29 is excluded. Under Section 29(1) of the Tenancy Act, a tenant who has lost possession of the land in question is given a right to apply for restoration of possession within a period of two years from the date such right of restoration accrues to him. If the tenant who has lost possession has not Page 17 of 36 C/SCA/19062/2016 CAV JUDGMENT applied within two years as required by Section 29(1), it can be said that he has lost his remedy to be restored back the possession. Section 32(IB) cuts across this scheme of Section 29(1) and states that notwithstanding anything contained in Section 29, such a tenant can get back possession even though he may not have applied for restoration of possession under Section 29(1) within a period of two years of his dispossession. Thus, a special remedy is given to such a tenant by the Legislature by enacting Section 32(IB). This is clearly a remedial measure and a beneficial provision. Implicit in the wordings of Section 32(IB) is the legislative intent that right of and remedy for such a tenant who has lost possession illegally ensure for his benefit, Section 29 notwithstanding and is such a subsisting right which is intended to be made more effective by restoration of possession of the land to the concerned tenant as per Section 32(IB). It is in the background of the aforesaid setting of Section 32(IB) that we have to answer the question posed for our consideration.
12. If such a tenant whose case is governed by Section 32(IB) dies, what is to happen to his tenancy rights which the legislation itself assumes to be subsisting? Even though actual possession of the land may have been illegally taken away by the landlord from such a tenant, his tenancy right is not lost. On the contrary, Section 32(IB) postulates subsistence of such a tenancy right. If such a tenant had himself made an application under Section 32(IB) and thereafter he had died pending the proceedings it is not disputed by the respondent that his heirs could have carried on the proceedings and could have got not only restoration of possession but got purchase price fixed. Under these circumstances, will it made any real difference if such a tenant whose case is clearly covered by Section 32(IB) dies before he himself could make an application? Why can his heirs not apply to the Mamiatdar under Section 32(IB) for the benefit of the estate of the tenant which is left by him on his death? We find that the answers to these questions are clearly indicated by the legislature itself by enacting Section 40 of the Tenancy Act. The said section as substituted by Bombay Act 13 of 1956 reads as under:
Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed 5 to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.
The aforesaid Section 40 clearly mentions that once a tenant dies, the landlord is deemed to have continued the tenancy on the same terms and conditions to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. Thus, statutory tenancy of the deceased tenant ensures for the benefits of his willing heirs. Section 40 operates on its own Page 18 of 36 C/SCA/19062/2016 CAV JUDGMENT and automatically. Consequently the tenancy rights of the deceased tenant by operation of Section 40 are available to his willing heirs and they step in the shoes of the deceased tenant. Once Section 40(1) is attracted on the death of a tenant and once his tenancy right gets vested in his willing heirs, there is no reason why such willing heirs cannot take the benefit of Section 32(IB) and cannot apply under the said provision for necessary reliefs of restoration of possession and fixation of purchase price. It is pertinent to note that Section 40(1) deals with the question regarding continuance of tenancy which a tenant was holding at the time of his death and it is this tenancy which he was holding and which is made available by the Legislature to his willing heirs elmost automatically and wherein the landlord is out of picture. There is no hiatus between the death of the tenant and the transmission of his tenancy rights to his willing heirs. Consequently even though the deceased tenant whose case is covered by Section 32(IB) may have died before he himself could make an application under see 32(1B), there appears no rhyme or reason to contemplate a situation where his heirs who automatically step in his shoes by the statutory operation of Section 40(1), cannot maintain an application for restoration of possession of the land from the landlord as they are statutorily clothed with all rights of the deceased tenant as per the combined operation of Section 32(1B) and Section 40(1) of the Tenancy Act. The aforesaid view of ours is clearly borne out by the relevant provisions of the Tenancy Act to which we have referred.
15. The question which has directly arisen before us as raised before N.H. Bhatt, J. in the case of Naihubhai (supra). N.H. Bhatt, J. took the view that the observations of M.P. Thakkar, J. in the aforesaid decision in 18, G.L.R. 901 were obiter dicta. Thereafter, the learned Judge on consideration of Section 32(IB) read with Section 40, took the view that Section 40(1) of the Tenancy Act required for its operation a further fact that the concerned tenant who dies must be in actual possession of the land is question at the relevant time and it was in that view of the matter that the learned Judge came to the conclusion that Section 32(1 B) cannot be invoked by the heirs of a deceased tenant. In para 7 of the report, the learned Judge while referring to Section 40 stated that even a casual glance at the text of that section shows that the legislature intended to extend the benefit of continued possession of a tenant to his heirs on the demise of the tenant. Now, with great respect to the learned Judge, it is not possible to agree with the said view as expressed by him, for the simple reason that under Section 40(1), once a tenant (sic), the landlord is deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death. This means that it is the tenancy light of the concerned tenant who dies and which he was holding at the time of his death which is contemplated by Section 40(1) for being transmitted onwards automatically to his willing heirs.
Now, the tenancy right nowhere requires for its existence actual possession Page 19 of 36 C/SCA/19062/2016 CAV JUDGMENT of the land held by such a tenant, The word 'tenancy' has been defined in Section 2(17) to mean relationship of landlord and tenant. For existence of relationship of landlord and tenant, it is not a pierequisite that such land must be in actual possession of the concerned tenant. N.H. Bhatt, J. with respect to him, assumed that Section 40(1) requires for its operation holding of land by the concerned tenant at the time of his death; while in fact, Section 40(1) requires holding of tenancy right by such tenant at the time of his death and not holding of land. Once it was assumed by the learned Judge that holding of land by the concerned tenant at the time of his death, was a prerequisite of Section 40(1) he had of necessity to resort to the definition of the phrase 'to hold the land.' The learned Judge, therefore, resorted to Section 3(ii) of the Bombay Land. Revenue Code which defines the phrase 'to hold land' to mean 'to be lawfully in possession of land'. Once it is found that the very starting premises as assumed by the learned Judge for application of Section 40(1) was erroneous, the conclusion is inevitable that the subsequent part of his reasoning also would fall through. As we have already indicated above, Section 40(1) of the of the Tenancy Act nowhere requires that the concerned tenant must be holding the land in question at the time of his death, It is also necessary to refer to the definition of 'tenant' in Section 2(18) which means a person who holds land on lease and includes
(a) a person who is deemed to be a tenant under Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant,
19. We may at this stage refer to a recent judgment of the Division Bench of the Bombay High Court in the case of Pandharinath Sakharam Chavan v. Bhagwan Ramu Kate . A similar question arose before the Division Bench of the Bombay High Court on a reference made by a learned Single Judge (Pendse, J.) who did not find himself in agreement with the view expressed by another learned Single Judge (Chandurkar, J.) who had taken the view that provisions of Section 32(1B) were not available to the heirs of the deceased tenant. While deciding the reference, the Division Bench speaking through Naik, J. held that.
Section 32(1B) is based on the legislative fiction of the continued subsistence of the tenant's tenancy notwithstanding his being out of possession beyond the period within which he could have claimed restoration thereof. Section 2y is expressly made inapplicable to facilitate such statutory fiction. The wording of Section 32(1B) referring to him as 'tenant', and applying Section 32A to 32R to him on restoration of possession itself implies legislative declaration of such continued subsistency. The expression "the tenant was Page 20 of 36 C/SCA/19062/2016 CAV JUDGMENT holding the tenancy at the time of his death" referred to in Section 40 does not mean that the tenant should be in possession of the land at the time of his death, for the simple reason that the provisions also apply to a tenant who has been dispossessed. What is meant by a 'tenant holding the tenant at the time of his death" is the right to be restored to possession by reason of is being a tenant who has been dispossessed unlawfully. Surely, if the tenant could be restored lo possession notwithstanding the limitation provided by Section 29 there is no reason why any mere specific words were required to ensure the same advantage to the heirs of a deceased tenant. Once the provisions of Section 2y have to be ignored, it would appear that the right of a tenant is a subsisting right and since it is a subsisting right, there is no difficulty in the heirs of the tenant being able to press into their service the provisions of Section 40 and take the advantage of Section 32(1B)".
With respect, we fully concur with the aforesaid view expressed by the Division Bench of the Bombay High Court. It is in consonance with the scheme of the Tenancy Act. To take any other view is to whittle down this beneficial provision of Section 32(18) and to make it unworkable beyond a point. It is also necessary to keep in view one additional aspect of the matter, in view of the recent judgment of the Supreme Court in the case of Damadilal Anr. Ors. v. Parasram and Ors. , the statutory tenancies under various Rent Control legislations are held to be heritable in the same way as the contractual tenancies. Following the aforesaid decision, a Full Bench of this Court in Babubhai alias Jayantilal Kalyanji and Ors. v. Shah Bharatkumar Raiilal and Ors. Reported in 21 G.L.R. 101, held that in view of the decision of the Supreme Court, there does not appear a well recognised distinction between a contractual tenancy and a statutory tenancy governed by the Rent Control Legislation and the difference is erased to such an extent that no apparent distinction is visible between the two. Thus, it is now well settled position in law that contractual tenancy and statutory tenancy for the purpose of their heritability do not represent different classes and on the contrary stand en the same footing. Hence even by law of in heritance and succession, such a statutory tenancy can be inherited by the heirs of the deceased tenant. Even apart from this, as we have shown earlier, Section 40 of the Tenancy Act in clear terms provides for transmission of such statutory tenancy to willing heirs of the deceased tenant."
31 I may refer to one decision of the Bombay High Court delivered by A.M. Khanwilkar, J. (as His Lordship then was) as regards Section 40 of the Bombay Tenancy and Agricultural Lands Act, 1948 in the case of Vasudeo Ramchandra Zkale and others vs. Vijay Bhikaji Raut and Page 21 of 36 C/SCA/19062/2016 CAV JUDGMENT others [2001 (3) Mh. L.J. 90]. The learned Single Judge observed as under:
"11. After having examined the relevant provisions, in my view, it would negate the legislative interest of enacting Section 40, if we were to hold that the heirs of deceased protected tenant will have no right to inherit the interest of the deceased tenant. It is well settled that heritability is an incident of the tenancy. Even the decision of the Apex Court (supra) has in terms held in para 8 that even before amendment of 1956 tenancy was heritable. Section 40 of the Act merely recognizes the right of heirs of the tenant to inherit the tenancy. The condition prescribed in Section 40 does not and cannot be understood to be destructive of the right of the heirs to inherit tenancy. On the other hand, as per the Act of 1939, tenancy could be inherited only by one of the heirs of the deceased tenant, whereas the provisions as on 30121948, when the tenant died in this case, was that all the heirs of the deceased tenant inherited the tenancy rights. There is no qualitative difference between the language of section 40 as applicable on 30121948 and the provisions after 181956 in so far as the recognition of right of inheritance is concerned. By the Act of 1956 the legislature has only declared that the landlord shall be deemed to have continued the tenancy in favour of the heirs of deceased tenant who may be willing to continue the tenancy on the same conditions. Whereas, even prior to 1956 amendment, the right to continuation of tenancy nevertheless existed, as Section 40, as it then was, provided that the landlord "shall offer" to continue the tenancy. No doubt, the offer was to be in writing, but no consequence were provided in the Act for failure to give such an offer. Since no consequences were provided, in case the landlord failed to give an offer in writing, cannot be said to be an indication that the right of inheritance is defeated or extinguished. If the legislature had intended to do so it would have surely made an express provision in that behalf. When an inherent right or preexisting right is to be affected then the legislature ought to make an express provision in that behalf. As aforesaid, it is well settled that inheritability is an incident of the tenancy and therefore, if legislature had any intention to affect such a right it would have surely made an express provision in the statute. The view taken by this Court in the case of Gajanan Govind Gavankar (supra) is that when the landlord had failed to make an offer in writing to the heirs of deceased tenant for continuation of tenancy, it would not mean that the heirs of tenant refused to obtain the tenancy rights. The expression employed in section 40 is "the landlord shall offer", which means that the landlord is duty bound to continue the tenancy in law. This legal obligation cannot be allowed to be obliterated or defeated by the voluntary act of an individual landlord. Thus there cannot be any qualitative difference in the position prior to amendment of 1956 and after 1956 as in both the cases the landlord is under an obligation to continue the tenancy in favour of the heirs of deceased tenant. In the Page 22 of 36 C/SCA/19062/2016 CAV JUDGMENT circumstances, I reject the submission advanced by the learned Counsel for the petitioner that section 40 of the Act as it stood on 30th December, 1948 did not give right to the respondents to inherit the tenancy in respect of the said lands and I further accept the reasons of the courts below that the respondents were tenants on the tillers' day in possession of the suit lands i.e. on 31st April, 1956, and thus became deemed purchasers thereof.
12. Coming to the second point which has been argued by the learned Counsel for the petitioners, the same deserves to be stated to be rejected for the simple reason that, it is an admitted position that the predecessor of the respondents was declared as the protected tenant and mutation entry to that effect also came to be recorded. It is not in dispute that the said mutation entry was never challenged by the petitioners' landlords. In view of the decision of the Apex Court , the respondents were, therefore, not required to bring on record any further material in support of their claim of tenancy, but, if the petitioners who were disputing their claim of tenancy, ought to have produced positive evidence to the contrary. Accordingly, the contention that for want of evidence it should be held that the respondents have failed to establish their tenancy in respect of the suit lands, also deserves to be rejected."
32 In Bhikubai Bhima Gaidhane and another vs. Khandu Daji Pagar and another [AIR 1973 Bombay 101], a learned Single Judge of the Bombay High Court held that whether a person is a tenant or not, can be decided only by the Mamlatdar and not the Agricultural Lands Tribunal and the statement of the tenant would not stop the operation of the social legislation which is for the benefit of the tenants and such statement should not be accepted. I may quote the relevant paras as under:
"4. It is contended on behalf of the petitioner by Mr. Mandalik that the respondent cannot have any right of reentry because he had given a statement before the Tribunal in S. 32G proceedings that he was not in possession of the land on 141957 the tillers' day; nor was he a tenant of the same. According to him the Agricultural Lands Tribunal had dropped the proceedings stating that he was not a tenant because of his statement before the Tribunal. It is, therefore, argued that when the proceedings under Section 32G were dropped and the respondent was held not to be a tenant, the respondent cannot turn round and challenge the order of eviction because he was occupying the lands unauthorisedly. The order according to Mr. Mandalik, the learned advocate for the petitioner, of the Page 23 of 36 C/SCA/19062/2016 CAV JUDGMENT Deputy Collector under Section 84 was therefore proper. The observation of the Revenue Tribunal according to Mr. Mandalik, that the respondent was a tenant in the record of rights and that he had a right of reentry is not based on any law.
5. Now Section 32 of the Tenancy Act declares the tenant as a deemed purchaser of the land, which he holds as a tenant on 1st April 1957, the tillers' day. Every tenant is deemed to have purchased from his landlord on 1st of April, 1957 the land free of all encumbrances subsisting thereon on that day. The person who becomes a deemed purchaser should be a permanent tenant and should cultivate the land personally and if he is not a permanent tenant he should be the person who cultivates the land. Now we have other sections relating to the deemed purchase. Under Sec. 32G after the tillers' day the Tribunal shall publish a public notice in the prescribed form in each village calling upon the tenants, who under Section 32 are deemed to have purchased land and landlords of such lands and all other persons interested therein, to appear before it on the dates specified in the notice. The tribunal shall issue a notice individually to each such tenant, landlord and other person. Under subclause (2) the Tribunal shall record in the prescribed manner statement of the tenant, ascertaining whether he is or is not willing to purchase land held by him as a tenant. If he does not appear then the Tribunal can declare that such tenant is not willing to purchase and that the purchase is ineffective. If the tenant is willing to purchase then every other step will have to be followed. Now there were proceedings under Section 32G in respect of the land held by the respondent as a tenant. Because the respondent is said to have made a statement before the Agricultural Lands Tribunal, that he was neither in possession of the land on 141957, nor was he a tenant, the proceedings were dropped. Although there is no order of the Agricultural Lands Tribunal on record it is said that the said Tribunal also passed the order that the respondent was not a tenant and not in possession of the land, and that therefore, the proceedings under Sec. 32G were ordered to be dropped.
6. An Interesting point that is raised now is that as soon as the respondenttenant had stated that he was not in possession and was not a tenant of the land, it should be taken for granted that he was neither in possession nor a tenant of the same. It therefore, he was found to be in possession later on he should be declared to be in unauthorised possession. If he is occupying the land unauthorisedly, he can be evicted under Section 84 of the Tenancy Act. The question is whether this contention is tenable.
7. The Tenancy Act is brought into operation on account of disputes between landholders and tenants and also for ensuring full and efficient use of lands for agriculture; and to see that landlords do not use devices to evict tenants for some reason or the other. The provision of this Act therefore is to further the interests of tenants who may be ousted by landlords in their own interest. We may have therefore to refer to Section Page 24 of 36 C/SCA/19062/2016 CAV JUDGMENT 15 to judge the plea of the landlord who says that the statement of the respondenttenant that he was not a tenant and that he was not in possession of the land should be taken into consideration to decide that he was no more a tenant. Under Section 15 a tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord. Such surrender shall be in writing and verified before the Mamlatdar in a prescribed manner. Where a tenant surrenders his tenancy the landlord shall be entitled to retain the land so surrendered. Mamlatdar also in this connection shall hold an inquiry and decide whether the landlord is entitled to retain the whole or any portion of the land so surrendered and specify the extent and price in that behalf. The landlord also should get an order for getting possession under Section 29 (2). The landlord shall obtain possession of any land held by a tenant only under an order of the Mamlatdar. For obtaining such an order he shall make an application in the prescribed form and within a period of two years from the date on which he becomes entitled to obtain possession of the land. Now. the legislature by enacting these provisions has safeguarded the interest of the tenants who may be ousted by an unscrupulous landlord. But the landlord in the instant case says that because the tenant has made a statement before the Agricultural Lands Tribunal that he was no more a tenant and that he was no more in possession, it should be treated as good as his giving up his tenant's rights. That certainly cannot be accepted.
8. Undoubtedly the record shows that the respondent was a tenant of the land from the years 195253 to 196465. No wonder therefore that the Agricultural Lands Tribunal had started proceedings under Section 32G. Because of the statement of the respondenttenant the Agricultural Lands Tribunal dropped the proceedings. Now the statement of the respondent merely shows that he had surrendered his tenancy and that he has given up his possession. However, his statement will not stop the operation of a social legislation which is for the benefit of tenants and which is to safeguard their interests. Even if, therefore the respondenttenant says that he had surrendered his possession, things ought to have taken place according to law. Termination of tenancy by virtue of surrender should be in accordance with Section 15. Possession by a landlord should be in accordance with Section 29. It cannot be in any other way. It cannot certainly be merely as a result of the statement of a tenant in S. 32G proceedings. It, therefore, cannot be said that the alleged statement of the tenant in the instant case leads only to one inference and that is that he ceased to be a tenant and that he ceased to be in possession of the land.
9. Moreover, the Agricultural Lands Tribunal has no power to declare that the respondent was not a tenant. Under Section 68 of the Tenancy Act power of the Agricultural Lands Tribunal are provided. In this connection it shall be the duty of the Tribunal to determine the value of a site or land under Sections 32G. 63A or 64 and to decide any dispute under Sections Page 25 of 36 C/SCA/19062/2016 CAV JUDGMENT 32 to 32R or to dispose of the land under Section 32B or to perform such other functions for carrying out the provisions of the Tenancy Act in the manner as may be prescribed or as may be directed by the State Government. It is no part of the duty of the Agricultural Lands Tribunal to say that respondent was or was not a tenant. It is only the duty of the Mamlatdar under Section 70 of the Tenancy Act to decide whether a person is a tenant or is not a tenant. It does not, therefore, appear to me that even if the Agricultural Lands Tribunal had held that the respondent is not a tenant and is not in possession simply because he had stated so, the tenant will cease to be in possession or that he will cease to be a tenant. It appears to me, therefore that this petition has no substance."
33 A Division Bench of this Court in the case of heirs of Shanabhai Ghanabhai Baraiya vs. Heirs of deceased Chunibhai Govindbhai and Karta of HUF [Letters Patent Appeal No.199 of 2011 decided on 29th November 2016] held that the termination of the tenancy should be in accordance with the provisions of Section 15 read with Section 29 of the Tenancy Act, and therefore, a statement of one of the tenants cannot be the foundation to drop the tenancy proceedings and cannot come in the way of the other tenant to claim their right under the Act. The relevant paras read as under:
"3. Mr. Nikhil Kariel, learned counsel for the appellant at the outset submitted that order impugned in this appeal passed by the learned Single Judge in exercise of powers under Article 226 and 227 of the Constitution of India discloses no reasons and it referred to events of earlier round of litigation in brief and what transpired before the lower authorities viz. Mamlatdar & ALT, Deputy Collector and the Tribunal for which agreement is recorded. In absence of any discussion of the nature of findings, conclusions of lower authority as are found just and proper, the writ petition came to be dismissed and the same deserves to be interferred with. At the same time, taking us through the merit of the appeal, it is contended that a statement made by deceasedtenant Shanabhai Ghanabhai Baraiya recorded on 14.10.1962 in proceedings under Section 32G that since the year 1947 deceased Shanabhai was not cultivating the suit land and, therefore, he was not a deemed purchaser and the suit land under Section 32 of the Act is of no consequence for deciding and determining the status as tenant and exercising power under the Act. It is further submitted that by virtue of operation of Section 32 of the BT & AL Act and such record qua suit land available would reveal deceased Page 26 of 36 C/SCA/19062/2016 CAV JUDGMENT Shanabhai was cultivating the land and in addition to the above, nature of inquiry envisaged in such a case by concerned Mamlatdar exercising power under a benevolent piece of Legislature enacted require cross checking about occupancy of the suit land. In support of submissions, as above, learned counsel for the appellant has placed reliance on the decision reported in the case of Bhikubhai Bhima Gaidhane and Anr. v. Khandu Daji Pagar & Anr. [AIR 1973 BOMBAY 101] wherein proceedings under Section 32G were initiated and statement was made by tenant of similar nature about surrendering the suit land to the landlord and the learned Single Judge held that simply because the tenant makes a statement that he was no more in possession, the same cannot be treated as truth as he has given up his tenancy rights and cannot be accepted. The contention of landlord about surrendering tenancy rights by the tenant based on a statement came to be negated. Para 7 of the judgment in the case of Bhikubhai Bhima Gaidhane [supra] reads as under:
"5. Now Section 32 of the Tenancy Act declares the tenant as a deemed purchaser of the land, which he holds as a tenant on 1 st April 1957, the tiller's day. Every tenant is deemed to have purchased from his landlord on 1st of April, 1957 the land free of all encumbrances subsisting thereon on that day. The persons who becomes a deemed purchaser should be a permanent tenant and should cultivate the land personally and if he is not a permanent tenant, he should be the person who cultivates the land. Now we have other sections relating to the deemed purchase. Under Sec.32 G after the tillers' day the Tribunal shall publish a public notice in the prescribed form in each village calling upon the tenants, who under Section 32 are deemed to have purchased land and landlords of such lands and all other persons interested therein to appear before it on the dates specified in notice. The tribunal shall issue a notice individually to each such tenant, landlord and other person. Under subclause (2) the Tribunal shall record in the prescribed manner statement of the tenant ascertaining whether he is or is not willing to purchase land held by him as a tenant. If he does not appear then the Tribunal can declare that such tenant is not willing to purchase and that the purchase is ineffective. If the tenant is willing to purchase then every other step will have to be followed. Now, there were proceedings under Section 32G in respect of the land held by the respondent as a tenant. Because the respondent is said to have made a statement before the Agricultural Lands Tribunal, that he was neither in possession of the land on 141957, nor was he a tenant, the proceedings were dropped. Although there is no order of the Agricultural Lands Tribunal on record it is said that the said Tribunal also passed the order that the respondent was not a tenant and not in possession of the land and that therefore, the proceedings under Sec.32G were ordered to be dropped."Page 27 of 36 C/SCA/19062/2016 CAV JUDGMENT
4. Inter alia, it is submitted that what weighed with the Tribunal in the facts of the present case was not holding deceased Shanabahi as tenant on the basis of his own voluntary admission in the year 1962 that on the tiller's day he was not cultivating the land and proceedings under Sections 32 1B also attained finality and in the second round of litigation the above fact was brought to the notice of concerned authority and still it was held in favour of the tenant. The applicability of principles of res judicata on the ground of finalization of proceedings under Section 32 1B of the BT & AL Act is misconceived inasmuch as by the order passed on 30.04.1978 proceedings were dropped by holding that provisions of the said section were not applicable and further litigation was undertaken by aggrieved party only with regard to observations made in the order by the appellate authority and it was open for the tenant to undertake proceedings under Section 32(o) of the Act if so advised and in revisional jurisdiction such observations were struck down. The above proceedings and outcome there of had no relevance in the second round of litigation arose out of order of remand dated 03.09.1984 passed in Revision Application TEN.BA No. 2043/82 by the Tribunal whereby the Mamlatdar and ALT was directed to hold a fresh inquiry with regard to the subject matter.
8. Having heard learned Counsels appearing for the parties, submissions made by them and perusal of orders passed in two rounds of litigations by Mamlatdar and ALT, Deputy Collector, Gujarat Revenue Tribunal following are our conclusions.
a. In the proceedings undertaken by the Mamlatdar and ALT under Section 32(G) of BT & AL Act qua lands bearing Survey No. 1272 admeasuring 2 Acres 29 Gunthas and Survey No. 1542 admeasuring 0.0 Acres 38 Gunthas situated in the sim of Village Changa, Taluka Petlad, District Anand, deceased Shanabhai a tenant no doubt made a statement before Mamlatdar and ALT and it was recorded on 14.10.1962 that he was not cultivating the suit land since 1947 and based on above, the above proceedings came to be dropped.
b. Tenancy Appeal No.179/1982 before Deputy Collector, Petlad, though preferred after 20 year, it was allowed and against which Revision Application No.TEN.BA. 2043/82 was preferred before Gujarat Revenue Tribunal came to be allowed vide order dated 03.09.1982 by quashing and setting aside both the orders and remanded the matter to the Mamlatdar and ALT. In the above order of remand by Gujarat Revenue Tribunal, reliance was placed on a decision reported in AIR 1973 Bombay 101 in the case of Bhikubai Bhima Gaidhane and another v. Khandu Daji Pagar and another of the High Court of Bombay, in which it was held as under:
"7. The Tenancy Act is brought into operation on account of Page 28 of 36 C/SCA/19062/2016 CAV JUDGMENT disputes between landholders and tenants and also for ensuring full and efficient use of lands for agriculture; and to see that landlords do not use devices to evict tenants for some reason or the other. The provision of this Act therefore is to further the interests of tenants who may be ousted by landlords in their own interest. We may have therefore to refer to Section 15 to judge the plea of the landlord who says that the statement of the respondenttenant that he was not a tenant and that he was not in possession of the land should be taken into consideration to decide that he was no more a tenant. Under Section 15 a tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord. Such surrender shall be in writing and verified before the Mamlatdar in a prescribed manner. Where a tenant surrenders his tenancy the landlord shall be entitled to retain the land so surrendered. Mamlatdar also in this connection shall hold an inquiry and decide whether the landlord is entitled to retain the whole or any portion of the land so surrendered and specify the extent and price in that behalf. The landlord also should get an order for getting possession under Section 29 (2). The landlord shall obtain possession of any land held by a tenant only under an order of the Mamlatdar. For obtaining such an order he shall make an application in the prescribed form and within a period of two years from the date on which he becomes entitled to obtain possession of the land. Now. the legislature by enacting these provisions has safeguarded the interest of the tenants who may be ousted by an unscrupulous landlord. But the landlord in the instant case says that because the tenant has made a statement before the Agricultural Lands Tribunal that he was no more a tenant and that he was no more in possession, it should be treated as good as his giving up his tenant's rights. That certainly cannot be accepted.
Undoubtedly the record shows that the respondent was a tenant of the land from the years 195253 to 196465. No wonder therefore that the Agricultural Lands Tribunal had started proceedings under Section 32G. Because of the statement of the respondent tenant the Agricultural Lands Tribunal dropped the proceedings. Now the statement of the respondent merely shows that he had surrendered his tenancy and that he has given up his possession. However, his statement will not stop the operation of a social legislation which is for the benefit of tenants and which is to safeguard their interests. Even if, therefore the respondenttenant says that he had surrendered his possession, things ought to have taken place according to law. Termination of tenancy by virtue of surrender should be in accordance with Section 15. Possession by a landlord should be in accordance with Section 29. It cannot be in any Page 29 of 36 C/SCA/19062/2016 CAV JUDGMENT other way. It cannot certainly be merely as a result of the statement of a tenant in S. 32G proceedings. It, therefore, cannot be said that the alleged statement of the tenant in the instant case leads only to one inference and that is that he ceased to be a tenant and that he ceased to be in possession of the land.(emphasis supplied) According to Gujarat Revenue Tribunal, no doubt the statement was made by the deceased tenant to the effect of surrendering his possession before 15 years and even the landlord making statement that tenant had handed over the possession before 10 years, in fact, name of the tenant was shown in the Revenue Record till the time when the statement was made and even thereafter. Though Deputy Collector was justified in setting aside the order passed by the ALT, the Gujarat Revenue Tribunal was of the opinion that the case ought to have been remanded to Mamlatdar and ALT to record the evidence and to decide the matter in accordance with law. Thus, simply because the deceased tenant made a statement and was recorded by Mamlatdar in the year 1962 about not cultivating the land was not sufficient enough according to the Gujarat Revenue Tribunal. In the above proceedings, no contention with regard to delay of 20 years in filing appeal before the Deputy Collector in the year 1982 against the order of 26.11.1962 was taken and considered. In second round of litigation, based on the above, Mamlatdar & ALT held in favour of tenant and confirmed by Deputy Collector. Thus, it was not open to GRT to take a different view on the issue of Law in the second round of litigation. Then, thirdly, by Order and communication as per the record, a xerox copy of payment of Rs.9852/ made by the successors of the deceased tenant towards purchase price so fixed is produced on record along with Certificate under Section 32(M) of BT & AL Act, 1948 in favour of Becharbhai Shanabhai Baraiya and widow Andarben Chhayabhai Shanabhai. The above Certificate under Section 32(M) of the Act was granted subject to restriction under Section 43 of the Act and not to be alienated in any manner or to create any encumbrance on the said lands namely Survey Nos. 1272 and 1542 situated in the sim of Village Changa, Taluka Petlad, District Anand, without seeking prior permission of the competent authority.
12. We find force in the submissions made by Mr.Nikhil Kariel learned advocate for the applicant based on law laid down by the High Court of Bombay in the decision of Bhikubai Bhima Gaidhane and another v. Khandu Daji Pagar and another (Supra) that because the tenant has made a statement before the Mamlatdar and ALT and, therefore, he was no more tenant and no more in possession and it should be treated as good as his giving up his tenancy rights, is not correct position of law and duty is cast upon Mamlatdar and ALT to hold proper inquiry and in the above case ALT had dropped the proceedings based on the statement of the tenant that he had surrendered his tenancy and had given up his Page 30 of 36 C/SCA/19062/2016 CAV JUDGMENT possession, but at the same time operation of the social legislation, which is for the benefit of the tenants and also to safeguard their interest, will not stop their termination of tenancy by virtue of surrender should be in accordance with Section 15 of the Act at the same time possession of the landlord should be in accordance with Section 29 of the Act. As we are in agreement with the law laid down by the High Court of Bombay in the decision of Bhikubai Bhima Gaidhane and another v. Khandu Daji Pagar and another (Supra), which still holds good, order passed by the learned Single Judge impugned in this Letters Patent Appeal, in view of the above and collective and conjoint appreciation of law as well as facts of the subject, and accordingly the order is quashed and setaside. The Appeal is allowed to the aforesaid extent."
● SCOPE OF ARTICLE 227 OF THE CONSTITUTION OF INDIA:
34 I may begin with noticing that the power of superintending control conferred by Article 227 of the Constitution is similar to the control exercised by the Court of Kings Bench over the inferior Courts of England under the Common Law. The history of Article 227 and its scope were considered by the Apex Court in Waryam Singh v.
Amarnath, (1954) SCR 565, and it was indicated that the material part of Article 227 substantially reproduces the provisions of Section 107 of Government of India Act 1915, except that the power of superintendence has been extended by the Article also to Tribunals.
35 The history of Article 227 suggests that the framers of our Constitution believed that they were restoring to the High Court the power which had been taken away by Section 224 of Government of India Act, 1935. In the original Constitution of India Article 227 was devised to empower the High Court to exercise its supervisory jurisdiction not only over the inferior courts within its territory but also over the statutory or quasi judicial Tribunals to ensure that all these inferior bodies exercise the powers conferred on them 'within the bounds of their authority' and 'in a legal manner'. But the supervisory Page 31 of 36 C/SCA/19062/2016 CAV JUDGMENT jurisdiction of the High Court over all the administrative Tribunals was abolished by the 42nd Amendment Act, 1976 on the ground that it caused delay and obstruction in the implementation of the Government Policies. By the 44th Amendment Act, 1978, all the Tribunals other than Military Tribunals were again brought under the supervision of the High Court.
36 Article 227 of the Constitution has been the subject matter of various decisions. In Baby v. Travancore Devaswom Board, (1998) 8 SCC 310, the Apex Court held that the powers of the High Court under Article 227 are in addition to the powers of revision conferred on it by the other legislation.
37 In Achutananda Vadya v. Prafullya Kumar Gayen and others, (1997)5 SCC 76, their Lordships of the Supreme Court observed that the power of superintendence under Article 227 is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and Tribunals, inferior to High Court, have done what they were required to do. The High Court can interfere under Article 227 in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material or resulting in manifest injustice.
38 In Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3 SCC 524, the Apex Court held that supervisory jurisdiction conferred on the Page 32 of 36 C/SCA/19062/2016 CAV JUDGMENT High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.
39 In Mani Nariman Daruwala v. Phiroz N. Bhatena, AIR 1991 SC 1494, the Apex Court indicated that in exercising its jurisdiction under Article 227 of the Constitution of India the High Court could set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion.
40 Way back in 1954, the Supreme Court, in the case of Waryam Singh v. Amarnath (1954) SCR 565, has observed as under :
"The power of superintendence conferred by Art.227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
The powers under Article 227, therefore, are to be sparingly used. This authority has been consistently followed by the Supreme Court of India.
41 In Estralla Rubber vs. Dass Estate (P.) Ltd., 2001 (8) SCC 97 :
(AIR 2001 SC 3295 : 2001 AIR SCW 3544), the Supreme Court has Page 33 of 36 C/SCA/19062/2016 CAV JUDGMENT observed while commenting upon the scope and ambit of Article 227 that the Article does not confer an unlimited prerogative upon the High Court to correct all wrong decisions or to prevent hardships caused thereby. It is then observed by the Supreme Court of India that the power under Article 227 can be exercised to interfere with orders of the lower Courts and Tribunals only in cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice.
42 The Supreme Court in Ouseph Mathai and others vs. M. Abdul Khadir, 2002 (1) SCC 319 : (AIR 2002 SC 110 : 2001 AIR SCW 4672), the Supreme Court of India has observed about Article 227. It lays down categorically that a petitioner cannot invoke jurisdiction under Article 227 as a matter of right. A petition under Article 227 should be treated like an extension of a statutory appeal or revision. Then it has been observed in this decision while speaking about the scope of Article 227 that mere wrong decision is not a ground for exercise of jurisdiction under Article 227. The High Court may intervene under Article 227 only where it is established that lower Court or Tribunal has been guilty of grave dereliction of duty and flagrant abuse of power. Where a statutory right of revision is provided and is exercised, it is exercised to point out infraction of law whether minor or major. It invites exercise of an important jurisdiction within the limits in which it is conferred on a particular Court or a Tribunal. To read dereliction of duty in every such order only to clothe this Court with a jurisdiction under Article 227 is not permissible.
43 In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals (AIR 1958 SC 398), the Constitutional Bench of the Supreme Court has explained the power of the High Court under Article 227 of Page 34 of 36 C/SCA/19062/2016 CAV JUDGMENT the Constitution in the following manner:
"The powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 266. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
44 In Bhutnath Chatterjee v. State of West Bengal, (1969) 3 SCC 675], the Supreme Court has held:
"The District Court held that compensation payable to the owners of land had to be determined on the basis of the marketvalue on the dates of the notifications, dated November 2, 1956 and June 3, 1958 and not on the basis of the notification, dated January 12, 1955. To revise that decision, jurisdiction of the High Court under Article 227 of the Constitution could not be exercised. Normally, the High Court exercises jurisdiction under Article 227 of the Constitution to ensure that a Subordinate Court or Tribunal does not transgress the limits of its jurisdiction. The jurisdiction with which the High Court is invested is not appellate; it cannot seek to correct what it regards as merely an error of law or fact."
45 In Babhutmal Raichand Oswal v. Laxmibai [(1975) 1 SCC 858], a Bench consisting of three Judges have explained the scope and power of the High Court under Article 227 in the following manner:
"The power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or tribunal. It's function is limited to seeing that the subordinate Court or Page 35 of 36 C/SCA/19062/2016 CAV JUDGMENT tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it."
46 In Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566, the Apex Court has explained the power and scope under Article 227 in the following manner:
"A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision."
47 In the facts and circumstances of the case, the Tribunal has found that there was sufficient cause for filing the revision beyond the period of limitation. This is a finding of fact. In a petition under Article 227 of the Constitution of India, unless this finding is shown to be perverse, it would not be open to this Court to disturb the same. If the finding is certainly not perverse, then it would not be open to this Court to disturb the same. There is no illegality or impropriety in the order passed by the Tribunal. The order passed by the Tribunal is eminently just and proper and the same is not required to be inferred with by exercising powers under Article 227 of the Constitution of India.
48 In view of the above, this application fails and is hereby rejected. Notice, if any, stands discharged. Adinterim order, if any, stands vacated.
(J.B. PARDIWALA, J.) CHANDRESH Page 36 of 36