Chanchalben W/O Bhagwandas ... vs Keshavbhai Kalyanbhai Thro ... on 6 April, 2018

[Cites 39, Cited by 0]

Gujarat High Court

Chanchalben W/O Bhagwandas ... vs Keshavbhai Kalyanbhai Thro ... on 6 April, 2018

Bench: J.B.Pardiwala

       C/SCA/2778/2008                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2778 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1     Whether Reporters of Local Papers may be allowed to             YES
      see the judgment ?

2     To be referred to the Reporter or not ?                         YES

3     Whether their Lordships wish to see the fair copy of the         NO
      judgment ?

4     Whether this case involves a substantial question of law         NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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          CHANCHALBEN W/O BHAGWANDAS RANCHHODDAS
                             Versus
      KESHAVBHAI KALYANBHAI THRO POA-BHIKHABHAI MAKANBHAI
==========================================================
Appearance:
MR DILIP L KANOJIYA(3691) for the PETITIONER(s) No. 2
MR RS SANJANWALA(728) for the PETITIONER(s) No. 1
DECEASED LITIGANT(100) for the RESPONDENT(s) No. 1
Mr JITENDRA M PANCHAL, WITH MR DHIRENDRA MEHTA(458) for the
RESPONDENT(s) No. 1.1,1.2,1.3
==========================================================

    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
 
                              Date : 06/04/2018 
                               CAV JUDGMENT

1. By this application under Article227 of the Constitution of India, the applicants have prayed for the following reliefs: Page 1 of 39 C/SCA/2778/2008 CAV JUDGMENT 14(a) be pleased to declare that the application filed by the Power of Attorney Holder of the respondent No.1 herein claiming right to purchase the land under the Tenancy Act was not at all maintainable in law and that the whole proceedings are vitiated;

(b) be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside (i) the order dated 22.10.1996 passed by the Mamlatdar, Kamrej in Tenancy Application No.06 of 1995 (AnnexureA), (ii) order dated 29.12.1997 passed by the Deputy Collector, Surat in Tenancy Appeal No.139 of 1996 (Annexure B) and (iii) order dated 27.12.2006 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.S.54/1998 (Annexure C) and be pleased to dismiss the application filed by the Power of Attorney Holder of the respondent No.1 herein before the Mamlatdar;

(c) pending admission and final hearing of this petition, be pleased to stay the operation, execution and implementation of the (i) order dated 22.10.1996 passed by the Mamlatdar, Kamrej in Tenancy Application No.06 of 1995 (AnnexureA), (ii) order dated 29.12.1997 passed by the Deputy Collector, Surat in Tenancy Appeal No.139 of 1996 (Annexure B) and (iii) order dated 27.12.2006 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.S.54/1998 (Annexure C);

(d) be pleased to grant such other and further reliefs as the Hon'ble Court may deem fit in the facts and circumstances of the case.

2. The case of the applicants, in their own words, as pleaded in their application, is extracted herein under:

3. The petitioners say that the present petition involves important questions of law as to the interpretation of Sections2(18), 32(3), 32, 32G and various other provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act'). The main question which arises for this Court's consideration is whether the respondent No.1 - Keshavbhai Kalyanbhai who is not personally cultivating the said land can claim any right to get the purchase price determined under Section32G of the Tenancy Act on the ground that he has become the deemed purchaser as on 01.04.1957. It is submitted that the said Shri Keshavbhai Kalyanbhai

- respondent No.1 herein has admittedly gone out of India and has permanently settled in England and has event taken British citizenship. It is submitted that on the plain reading of the definition of Tenant as given in Section 2(18) of the Tenancy Act and the Page 2 of 39 C/SCA/2778/2008 CAV JUDGMENT definition of 'personal cultivation' as defined under the Tenancy Act, the said Shri Keshavbhai Kalyanbhai could not have even made an application on 21.09.1995 when he was certainly not cultivating the land and seized to be the tenant. The cultivation by the Power of Attorney Holder cannot be said to be the cultivation by the tenant. The other question which arises is that the petitioner herein who was the tenant before the Mamlatdar had given an application to the effect that question of jurisdiction and the application of the Tenancy Act may be decided as a preliminary issue and though the said point was taken before all the authorities, especially before the Mamlatdar, the Mamlatdar did not decide the said question raised and without following the legal procedure as prescribed under Section 72 of the Tenancy Act and without affording the right of crossexamination to the present petitioner who was the tenant before the Mamlatdar, has decided the case on merits and determined the purchase price. The other question is that admittedly, the landlord Dalpatbhai was declared lunatic and the Nazir of the Court was appointed as a Guardian and that he ceased to be the lunatic only on his death on 29.12.1990. Therefore, the whole basis of the judgment of the Mamlatdar as confirmed by the Deputy Collector and the Tribunal proceeds totally on the wrong basis that as on 01.04.1957, the tenant had become the deemed purchaser. On the plaint reading of Section 31(3), the date of deemed purchase would be deferred till the lunacy ceased which was on 29.12.1990.

5. That Shri Bhikhabhai Makanbhai Mistry, as Power of Attorney Holder of the respondent - Keshavbhai Kalyanbhai filed an application before the Mamlatdar, Choryasi for determining the purchase price under Section 32G of the Tenancy Act. In the said application, which was numbered as Tenancy Application No.06 of 1995, the petitioner who was the opponent No.1 gave an application before the Mamlatdar that the application filed by Bhikhabhai Makanbhai Mistry was not maintainable in law and he had no jurisdiction to decide the matter since the said Keshavbhai Kalyanbhai had already migrated to Britain and had acquired the British citizenship. He was no more cultivating the land and the Power of Attorney Holder will have no authority to make such application. Without deciding the points raised by the present petitioner No.1, the application was decided by the Mamlatdar and fixed the purchase price and came to the conclusion that the tenant is deemed to have purchased the land as on 01.04.1957. The purchase price was determined at Rs.3,812/. The said decision was rendered on 22.10.1996.

6. Being aggrieved by the same, the petitioner No.1 herein filed Tenancy Appeal No.139 of 1996 before the Deputy Collector, Surat. However, the said appeal was dismissed by the Deputy Collector on Page 3 of 39 C/SCA/2778/2008 CAV JUDGMENT 29.12.1997 and has been pleased to confirm the order passed by the Mamlatdar, Kamrej.

7. Being aggrieved by the same, the petitioner No.1 herein filed Revision Application No.TEN.B.S.54/1998 before the Tribunal which has been dismissed on 27.12.2006. However, the certified copy of the said order was rendered only on 02.01.2007.

3. Mr. Sanjanwala, the learned senior counsel appearing for the applicants made the following submissions:

1. The orders passed by all the three lower authorities are patently bad and illegal. They are without jurisdiction. It is submitted that the application filed before Mamlatdar under Section 32G to decide the purchase price on the basis that the tenant had become the owner on the tillers day i.e.1.4.1957 could not have been filed at all. It was wholly without jurisdiction. It is submitted that under Section 32 of the Tenancy Act, on the tillers day, the tenant would be deemed to have purchase the land if such a tenant is a permanent tenant thereof and cultivates the land personally, such a tenant is not permanent tenant, but cultivates the land personally. Therefore, personal cultivation by the tenant himself is a condition precedent to have become the owner. Under Section 32G, under which the application has been made, only the tenant who under Section 32G is deemed to have purchased the land has got a right to make an application for determination of purchase price. The word "to cultivate personally" is defined under Section 2(6) of the Tenancy Act. It includes the following: "(i) by one's own labour, or

(ii) by the labour of any member of one's family;

(iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in cash or kind but not in crop share,"

2. It is thus clear that the tenant has to personally cultivate the land by his own labour or by the labour of any member's family or he has to personally supervise if it is by hired labour. Admittedly, when Keshavbhai Kalyanbhai had already left in 1990, he could not have done any of these things personally. Therefore, the concept of cultivation by Power of Attorney Holder has personal cultivation is not known to law. Therefore, under Section 31(3) of the Tenancy Act also, since Dalpatbhai was a lunatic, the purchase will get deferred till his death or seizing of physical disability.

Page 4 of 39 C/SCA/2778/2008 CAV JUDGMENT

3. Since Dalpatbhai was a lunatic, purchase will get deferred from 1.4.1957 to 29.12.1990 when he died. So, the purchase price can be determined only on that basis. On that date, admittedly, Keshavbhai Kalyanbhai had acquired British citizenship and has migrated to London and, therefore, the determination of purchase price as on 1.4.1957 is patently bad and illegal and the purchase price as on 29.12.1990 could not have been decided.

4. That the Mamlatdar has not followed the procedure under Section 72 of the Tenancy Act and he has not given right of cross examination to the present petitioners.

5. That though the application was given to decide the preliminary point, Mamlatdar has not decided the preliminary point and the case has been decided on merits without giving opportunity to the petitioners.

6. That since Keshavbhai Kalyanbhai has migrated to London and ceased to be the citizen of India, he has no right to even defend the present writ petition.

4. On the other hand, this application has been vehemently opposed by Mr. J.M. Panchal, the learned counsel appearing with Mr. Dhirendra Mehta for the private respondents. He submitted that no error not to speak of any error of law could be said to have been committed by the revenue authorities in passing the impugned orders. It is submitted that this Court may not disturb the concurrent findings recorded by the three authorities. No interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article227 of the Constitution of India.

5. Mr. Patel submitted that indisputably on 01/04/1957, Keshavbhai Kalyanbhai i.e. the respondent no.1 was a tenant and he became a deemed purchaser of the land in question in accordance with the provisions of the Tenancy Act. Mr. Patel submitted that in such circumstances, the purchase price was fixed by the authorities concerned under Section32G of the Tenancy Act. It is pointed out that the Page 5 of 39 C/SCA/2778/2008 CAV JUDGMENT respondent - tenant paid the entire price as fixed by the authorities and pursuant to the same, a certificate under Section32M of the Tenancy Act was also issued on 28/12/2007. Mr. Patel would submit that the certificate issued under Section32M of the Tenancy Act is conclusive evidence of the purchase. Mr. Patel submitted that any order passed by the authorities under Section32P of the Tenancy Act is appealable under Section74(m) of the Tenancy Act. The certificate issued by the authorities attained finality.

6. Mr. Patel further submitted that there is no evidence worth the name on record to even remotely indicate that the landlord was a lunatic. Mr. Patel would submit that in accordance with the provisions of Section31 of the Tenancy Act, the landlord had the right to terminate the tenancy within one year from the date, on which, his mental or physical disability ceased to exist under Section 31(2)(iii) of the Gujarat Act (5) of 1973. Subsection(4) of the Section31 came to be introduced in the Tenancy Act, by which, the right of a 'disabled landlord' needs to be exercised within a period of six months from the specified date i.e.03/03/1973 as defined under Section2(16C) of the Tenancy Act. Mr. Patel submitted that assuming for a moment without admitting that Dalpatbhai was a disabled landlord on 01/04/1957, he was supposed to exercise his right of terminating the tenancy within a period of six months from the specified date i.e.03/03/1973. In the case on hand, the landlord did not terminate the tenancy nor filed any suit for possession. In such circumstances, the landlord could be said to have lost his right. The failure on the part of the landlord to file an application or suit and recover the possession as provided under Subsection(4) of the Section31 of the Tenancy Act puts an end to the entire controversy.

7. Mr. Patel pointed out that assuming for a moment that Dalpatbhai Page 6 of 39 C/SCA/2778/2008 CAV JUDGMENT was disabled or a lunatic on 01/04/1957, he was not the only landlord. His mother viz.Chanchalben and his sister viz.Ujamaben were alive on 01/04/1957. Therefore, on 01/04/1957, there were three joint owners, out of which, only one could be said to be a disabled person. As there were two other coowners, the price fixation could not have been postponed under Section32F of the Act. In the case on hand, no error has been committed by the Mamlatdar by not postponing the deemed fixing of the price under section32F of the Act and in the absence of the same, the tenant became a deemed purchaser w.e.f.01/04/1957. The landlord could be said to have lost all his rights, title and interest in the property.

8. In the last, Mr. Patel submitted that the tenancy rights are inheritable. If a tenant dies in any tenancy proceedings, his heir would automatically would fall into shoes of the deceased - tenant by virtue of the statutory operation of Section40(1) of the Tenancy Act. In such circumstances referred to above, Mr. Patel prays that there being no merit in this application, the same be rejected.

9. 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 authorities committed any error in passing the impugned orders.

10. Before adverting to the rival submissions canvassed on either sides, I must look into few relevant provisions of the Tenancy Act.

Section2(6) defines the phrase "to cultivate personally". Section2(6) of the Act is extracted hereunder: Page 7 of 39 C/SCA/2778/2008 CAV JUDGMENT (6) "to cultivate personally" means to cultivate on one's own account:

(i) by one's own labour, or

(ii) by the labour of any member of one's family, or

(iii) by servants on wages payable in cash or kind but not in crop share by hired labour under one's personal supervision or the personal supervision of any member of one's family.

Explanation I: A tenant who is a widow or a minor is subject to any physical or mental disability shall be deemed to cultivate the land personally, if it is cultivated by sher or his servants, or by hired labour.

Explanation II: In the case of an undivided Hindu family, the land shall be deemed to have been cultivated personally, if it is cultivated by any member of such family;

Section31 provides for the right of the landlord to terminate the tenancy for personal cultivation and nonagricultural purpose. Section 31 is extracted hereunder: Section 31 Landlords right to terminate tenancy for personal cultivation and nonagricultural purpose: (1) Notwithstanding anything contained in section 14 and section 30 but subject to section 31A to 31D (both inclusive), a landlord may, after giving notice and making an application for possession as provided in subsection (2), terminate the tenancy of any land (except a permanent tenancy), if the landlord bonafide requires the land for any of the following purposes:

(a) for cultivating personally, or

(b) for any nonagricultural purpose.

(2) The notice required to be given under subsection (1) shall be in writing, shall state the purpose for which the landlord requires the land and shall be served on the tenant on or before the 31st day of December 1956. A copy of such notice shall, at the same time, be sent to the Mamlatdar. An application for possession under section 29 shall be made to the Mamlatdar on or before the 31st day of March 1957.

(3) Where a landlord is a minor, or a widow, or a person subject to mental or physical disability or a serving member of the armed forces then such notice may be given -

(i) by the minor within one year from the date on which he attains majority;

Page 8 of 39 C/SCA/2778/2008 CAV JUDGMENT

(ii) by the successorintitle of a widow within one year from the date on which her interest in the land ceases to exists;

(iii) within one year from the date on which mental or physical disability ceases to exits; and Section32 of the Act provides that the tenant is deemed to have purchased the land on the "tillers' day". Section32 is extracted hereunder: Section 32 Tenants deemed to have purchased land on tillers' day: (1) On the first day of April 1957 (hereinafter referred to as "the tillers' day") every tenant shall, subject to the other provisions the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if -

(a) such tenant is a permanent tenant thereof and cultivates land personally;

(b) such tenant is not a permanent tenant but cultivates land leased personally; and

(i) the landlord has not given notice of termination of his tenancy under section 31; or

(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land;

Provided that, if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Bombay Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postponed date.":

Section32F provides for the right of the tenant to purchase, where landlord is a minor. Section32F is extracted hereunder: Section 32F Right of tenant to purchase where landlord is minor, etc.: (1) Notwithstanding anything contained in the preceding sections,

(a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, the tenant shall have the right to purchase such land under Page 9 of 39 C/SCA/2778/2008 CAV JUDGMENT section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31;

(b) where the tenant is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised -

(i) by the minor within one year from the date on which he attains majority;

(ii) by the successorintitle of the widow within one year from the date on which her interest in the land ceases to exist;

(iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist;

(iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces.

(2) The provisions of sections 32 to 32E (both inclusive) and sections 32G to 32R (both inclusive) shall, so far as may be applicable, apply to such purchase.

Section32G provides that the tribunal shall issue notice and determine the price of the land to be paid by the tenant. Section32G is extracted hereunder: Section 32G Tribunal to issue notices and determine price of land to be paid by tenants -

(1) As soon as may be after the tillers' day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon -

(a) all tenants who under section 32 are deemed to have purchased the lands,

(b) all landlords of such lands, and

(c) all other possession interested therein, to appear before it on the date specified in the notice. The tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear before it on the date specified in the public notice.

(2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as tenant.

(3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land Page 10 of 39 C/SCA/2778/2008 CAV JUDGMENT and that the purchase is ineffective:

Provided that, if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.

(4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and the landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32H and of subsection (3) of section 63A:

(5) In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be, after such date determine the price of the land.

(6) If any land which, by or under the provisions of any Land Tenures Abolition acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of regrant.

Section32M provides that the purchase shall be ineffective on tenant purchaser's failure to pay the purchase price. Section32M is extracted hereunder: Section32M Purchase to be ineffective on tenant's failure to pay purchase price in lump sum or in installments within given period: (1) On the deposit of the price in lump sum or of the last installment of such price the Tribunal shall issue a certificate of purchase in the prescribed form, to the tenant in respect of the land. Such certificate shall be conclusive evidence of purchase, if a tenant fails to pay the lump sum within the period fixed under clause (ii) of subsectin (1) of Section 32K or is at any time in arrears of four four installments the purchase shall be ineffective and the land shall be at the disposal of the Collector under section 32P and any amount deposited by such tenant towards the price of the land shall be refunded to him.

Page 11 of 39 C/SCA/2778/2008 CAV JUDGMENT

(2) Where a tenant is in arrears of four installments, he may b within a period of three months from the date of the default of the last installments apply to the Tribunal to condone the default on the ground that he, for sufficient reasons, was incapable of paying the installments and if the Tribunal after holding such inquiry as it may thing fit, is so, satisfied, the Tribunal may allow further time for the payment of the arrears and may for that purpose increase the number of installments to sixteen. If the tenant thereafter is at any time in arrears of four installments or has committed default in payment of the purchase price within the period so extended, the purchase shall be ineffective as provided in subsection (1).

Section40 provides for continuation of the tenancy on death of the tenant. Section40 is extracted hereunder: Section 40 Continuation of tenancy on death of tenant: (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be 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, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.

(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have charge fore maintenance on the profits of such land.

11. In the case on hand, there are three concurrent findings recorded by the revenue authorities against the applicants. The application on hand is one under Article 227 of the Constitution. The limitation of the High Court while exercising power under Article 227 is one of judicial superintendence and cannot be exercised to upset the conclusions of facts, however, erroneous those may be.

12. A Constitution Bench of the Supreme Court in Waryam Singh and Another vs. Amarnath and Another; 1954 SCR 565, where the principles have been clearly laid down as follows:

"This power of superintendence conferred by Article 227 is, as pointed out by Harries C.J. in Dalmia Jain Airways Ltd. v. Sukumar Page 12 of 39 C/SCA/2778/2008 CAV JUDGMENT Mukherjee, 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".

13. The same view was reiterated by another Constitution Bench of the Supreme Court in Nagendra Nath Bora & Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others., 1958 SCR 1240. In Bathut mat Raichand Oswal Vs. Laxmibai R. Tarta and Another, (1975) 1 SCC 858 dealing with a litigation between a landlord and tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Supreme Court relying on its earlier decisions observed as follows : "If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article227. The power of superintendence under Article 227 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".

14. I take notice of the observations made by the Supreme Court in the case of 'Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Limited & Anr.', (2014) 6 SCC 434.

"15. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or reappreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a Page 13 of 39 C/SCA/2778/2008 CAV JUDGMENT well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice.

16. It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil1, with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49 that The power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

It was also held that High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it.

Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.

17. In the case of Harjinder Singh v. Punjab State Warehousing Corporation2, this Court held that, "20.....In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation."

18. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland4, wherein it is stated that : "Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence Page 14 of 39 C/SCA/2778/2008 CAV JUDGMENT with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."

15. Let me now look into the order passed by the revenue tribunal, the tribunal in its order has observed as under: "That there is a land bearing S.No.74, Block No.86, admeasuring Hec.17837 sq.mtrs. situated in the revenue precincts of village Ladavi, Tal. Kamrej. Admittedly, the land originally belonged to one Bhagwanbhai Ghelabhai and the present applicant as well as opponent No.2 are his daughters. The present opponent No.1 submitted one application that his grand father Kalabhai was cultivating the suit land as tenant at the annual rate of Rs.300/. After the death of Kalabhal, the tenancy rights have been inherited to Keshavlal Kalyanbhai and his name was recorded as protected tenant in the record of rights. Therefore, he prayed for the fixation of purchase price and also asked for interim relief. It transpires that notices were served to the parties i.e. present applicant as well as the opponents. The application was registered as Tenancy Case No.6/95. During the course of proceedings, the present applicant submitted an application that opponent No.1 (applicant) Keshavbhai is residing in England and as acquired British Citizenship and has lost the citizenship of India. Therefore, he cannot hold any tenancy rights and cannot claim so. It was further contended that the power of attorney holder of Keshavbhai i.e.Bhikhabhai has made trespass over the suit land and, therefore, he prayed that this preliminary issue of jurisdiction should be decided first. Opponent No.1 submitted his reply that power of attorney holder Bhikhabhai is managing the affairs of opponent No.1 Keshavbhai Kalyanbhai and, therefore, he is not a Page 15 of 39 C/SCA/2778/2008 CAV JUDGMENT trespasser and no question of permitting or deciding the preliminary issue is required. It was further contended on behalf of the present applicant that when opponent No.1 has lost citizenship, he cannot hold any property much less the agricultural land as tenant and even the deed of power of attorney also mentions the residence of the tenant at England. It further transpires that on the basis of documentary evidence produced, the Mamlatdar & ALT, Kamrej, allowed the application and fixed the purchase price at Rs.3812/. Aggrieved by this order, the present applicant preferred Tenancy Appeal No.139/96 before the learned Dy.Collector (L.R.) Surat, which came to be rejected by his order dated 29.12.1997 and, therefore, the present revision application has been preferred by the applicant.

3. The learned advocate for the applicant has submitted that originally the land belonged to Bhagwanbhal Ghelabhai and after his death, the ownership was inherited to his two daughters and one owner Dalpatram. The said Dalpatram was a lunatic and he also expired. It is further contended that the suit land was tenanted to Kalabhai Devjibhai and after his death, tenancy rights were inherited to his son Kalyanbhai Kalabhai and thereafter it was inherited to opponent No.1 Keshavbhai Kalyanbhai. But, this Keshavbhai Kalyanbhai was not cultivating the land personally and he has not obtained citizenship of India as tenant but has become citizen of United Kingdom and, therefore, he can be considered no more as tenant and he cannot continue his tenancy rights. It is further submitted that in Tenancy Case No.6/95 before the Mamlatdar, the preliminary issue of jurisdiction was raised but that has not been decided and without recording any evidence, straightway, the purchase price was fixed. In appeal also, the same procedure has been followed and, therefore, the orders passed by both the courts below are improper and illegal. It was also contended that in the written reply, even opponetn No.1 has admitted that the preliminary issue sought to be raised by the applicant on the point of jurisdiction is a mixed question of law and facts and, therefore, it cannot be decided without recording the evidence. It was further submitted that no evidence of Indian Citizenship of opponent No.1 has been produced and the important question has been ignored. Therefore, the revision application should be allowed.

4. On behalf of opponent No.1, it has been contended that even according to the present applicant, the grandfather of present opponent No.1 was a recorded protected tenant and, therefore, opponent No.1 has become deemed purchaser from 1.4.1957. There are voluminous documentary evidences on record to show the tenancy rights inherited to present opponent No.1. It ls further contended that Dalpatbhai, son of Bhagwanbhai was a relative and in the proceedings under Guardians and Wards Act, Nazir District Court appointed Page 16 of 39 C/SCA/2778/2008 CAV JUDGMENT guardian of the said lunatic Dalpatbhai and opponent No.1 used to deposit annually a sum of Rs.300/ in the District Court for which the documentary evidence of receipts have been produced and, therefore, no question of deciding the tenancy rights which were already in existence on the date of application.

5. I have anxiously gone through the file of Mamlatdar and ALT. At page 143 thereof, there is a copy of mutation entry No.37 dated 1.2.1953. Therefore, it is no longer in doubt that present opponent No.1 Keshavbhai has been inherited the tenancy rights as tenant of the suit land. The receipts of rent issued by Nazir District Court from page 109 to 141 also go to, show the amount of rent paid or deposited in respect of the suit land. The deed of power of attorney in the name of Bhikhabhai Makanbhai is of the year 1990.

6. Looking to the case file and documentary evidence on record, there does not remain any doubt about the fact that Keshavbhai Kalyanbhai is a recorded protected tenant in the suit land before the Act came into force. The learned advocate for the applicantlandlord has raised a question that Keshavbhai Kalyanbhai having acquired the British Citizenship and having abandoned the Indian citizenship is not entitled to hold any property much less the agricultural land in India. Of course, there is no evidence on record to show as to whether he has acquired the British citizenship or has abandoned the Indian citizenship. Even, in the application submitted by the landlord before the Mamlatdar and ALT, no such date of having acquired the British citizenship by the tenant is pleaded. But, the fact remains that by virtue of mutation entry No.37, posted and certified in the year 1953, said Keshavbhai was a recorded tenant of the suit land and, therefore, on 1.4.1957, i.e.on Tiller's day, he becomes the deemed purchaser. It is not the case of the landlord that said Keshavbhai acquired British citizenship before 1.4.1957.

7. It is an admitted fact on record that for one reason or the another, say for example, the deceased Dalpatbhai was a lunatic and certified landlord, the proceedings under Sec.32G could not take place, but if would have not been so, the awarded under Sec. 32G of the Act, definitely would have been passed in favour of the recorded protected tenant just after the Act, came into force after 1.4.1957. Now considering a hypothetical situation that in case if the proceedings under Sec.32G could have taken place just after 1.4.1957 and before Keshavbhai left for United Kingdom, could it be said that on account of having acquired the British citizenship, the, proceedings under Sec.32G were required to be quashed. It is also to be noted that inspite of the fact that the proceedings under Sec.32G did not take place earlier, at the same time, the landlord has also not taken any steps Page 17 of 39 C/SCA/2778/2008 CAV JUDGMENT under Sec.32S, T or U for recovering the possession of the suit land from the tenant. Now, that limitation for recovering the possession has already expired before decades, the question agitated on behalf of the landlord becomes redundant. Therefore, I see no reasons to interfere the orders passed by both the courts below.

8. In the result, following order is passed.

ORDER Revision Application No.TEN.B.S.54/98 is hereby dismissed"

16. The GRT was exercising power under Section76 of the Tenancy Act, which reads as below: "76. Revision (1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957 (Bom.XXXI of 1958), an application for revision maybe made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector except an order under section 32P or an appeal against an order under subsection (4) of section 32G on the following grounds only :--

(a) that the order of the Collector was contrary to law,

(b) that the Collector failed to determine some material issue of law, or

(c) that there was a substantial defect in following the procedure provided by this Act or that there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.

(2) In deciding applications under this section the Gujarat Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Gujarat Revenue Tribunal."

It can exercise revisional jurisdiction on the limited grounds mentioned in the above provision, if it finds the order of the Collector to be contrary to law, where the Collector had failed to determine a material issue of law or where there is a substantial procedural defect.

17. Let me now look into the position of law as explained by the Supreme Court in various of its decisions so far as the Bombay Tenancy Page 18 of 39 C/SCA/2778/2008 CAV JUDGMENT and Agricultural Lands Act is concerned. In the case of 'Sri Ram Ram Narain Medhi Vs. The State of Bombay' reported in AIR 1959 SC 459, a Constitution Bench of the Supreme Court considered the entire scheme of the Act, more particularly, the right of the tenant to purchase the land.

39. It, therefore, remains to consider whether the relevant provisions of the impugned Act were designed to bring about an extinguishment or modification of the landlord's rights in their "estates". These provisions are contained in Ss. 32 to 32R of the impugned Act and are under the heading "Purchase of lands by Tenants." Section 32 provides that "on the first day of April 1957 (hereinafter referred to as "the tillers day' ) every tenant shall, subject to the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all incumbrances subsisting thereon on the said day, the land held by him as tenant...................." provided certain conditions are fulfilled.

Under S. 32A the tenant shall be deemed to have purchased the lands up to the ceiling area and the tenant shall not be deemed to have purchased lands held by him as such tenant it he hold lands partly as owner and partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area (S. 32B). Section 32C empowers the tenant to choose the land to be purchased if he holds lands separately from more than one landlord and in spite of anything contained in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (Bom. LXII of 1947) the tenant shall be deemed to have purchased even such fragments of the land held on tenancy (S. 32D). The balance of any land after the purchase by the tenant as above is to be disposed of as if it were land surrendered by the tenant (S. 32E); and the right of the tenant to purchase such land where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces is postponed till one year after the cessation of disability. The price to be paid by the tenant is to be determined by the Tribunal as soon as may be after the tiller's day and the Tribunal is in the first instance to record in the prescribed manner the statement of the tenant whether he is willing or is not willing to purchase the land held by him as a tenant and if the tenant fails to appear or makes a in writing that such tenant is not willing to purchase the land and that the statement that he is not willing to purchase the land, the Tribunal is to declare by an order purchase is ineffective (S. 32G). These provisions also apply to a subtenant of a permanent tenant who is deemed to have purchased the land subject Page 19 of 39 C/SCA/2778/2008 CAV JUDGMENT to the conditions specified in Ss. 32 to 32E (S. 321). S. 32 J provides for an appeal to the State Government against the decision of Tribunal. Section 32K prescribes the mode of payment of price by the tenant; and the purchase price is recoverable as arrears of land revenue (S. 32L). Under S. 32M on the deposit of the price in lump sum or of the last instalment of such price, the Tribunal is to issue a certificate of purchase to the tenant in respect of the land, which certificate of purchase shall be conclusive evidence of purchase. If a tenant fails to pay the lump sum within the period prescribed or is at any time in arrears of four instalments the purchase is to be ineffective and the land is to be at the disposal of the Collector and any amount deposited by such tenant towards the price of the land is to be refunded to him. S. 32N gives the landlord a right to recover rent when purchase becomes ineffective, as if the land had not been purchased at all. Section 32P gives the power to the Collector to resume and dispose of land not purchased by tenants. The amount of purchase price is to be applied towards satisfaction of debts (S. 32Q) and the purchaser is to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally (S. 32R).

40. It is argued on the strength of these provisions that there is no effective purchase or effective sale of the land between the landlord and the tenant on the tiller's day or the alternative period prescribed in that behalf until certain conditions are fulfilled. To start with it is only an inchoate right which is given to the tenant to purchase the land which he can perfect on a statement being made by him before the Tribunal that he is willing to purchase the land. Even if he does so, the land does not vest in him because only on the payment of the purchase price either in lump or by instalments can he get certificate of purchase from the Tribunal. If be commits default in payment, the purchase is ineffective and he gets no title to the land. These provisions, it is submitted, do not vest the title to the land in the tenant at, all until all these conditions are fulfilled and if any one or more of them is not fulfilled the purchase becomes ineffective in fact it is no purchase at all with the result that the title to the land which is already vested in the landlord is not at all transferred to the purchaser. If that is so, there is no compulsory sale or compulsory purchase of the land in question on the tiller's day or the alternative period of time prescribed therefor and there is no extinguishment of the rights of the landlord. His rights in the land are merely suspended and such suspension is certainly not an extinguishment of his rights therein nor a modification thereof within the meaning of the expression used in Art. 31A (1) (a). Reliance is placed in support of this proposition on the observations of this Court in Raghubir Singh v. Court of Wards, Ajmer, 1953 S C R 1049 : (A I R 1953 SC 373). In that case this Court considered the provisions of S. l12 of the Ajmer Tenancy and Land Records Act (XLII of 1950) which provided that if a Page 20 of 39 C/SCA/2778/2008 CAV JUDGMENT landlord habitually infringes the rights of a tenant under the Act he would be deemed to be a landlord who is disqualified to manage his own property and his property would be liable to be taken under the superintendence of the Court of Wards. Mahajan J. (as he then was) observed at p. 1055, (of S C R) : (at p. 375 of A I R).

"Section 112 of the Act XLII of 1950, intended to regulate the rights of landlords and tenants, is obviously not a law providing for "the acquisition by the State" of the estates of the landlords, or of any rights in those estates. It is also not a law providing for the extinguishment or modification of any such rights. The learned AttorneyGeneral laid emphasis on the word "modification" used in Article 31A. That word in the context of the article only means a modification of the proprietary right of a citizen like an extinguishment of that right and cannot include within its ambit a mere suspension of the right of management of estate for a time, definite or indefinite."

41. These observations were confined to suspension of the right of management of the estate and not to a suspension of the title to the estate. Apart from the question whether the suspension of the title to the estate for a time, definite or indefinite would amount to a modification of a right in the estate within the meaning of Art. 31A(1)

(a), the position as it obtains in this case is that there is no suspension of the title of the landlord at all. The title of the landlord to the land passes immediately to the tenant on the tiller's day and there is a completed purchase or sale thereof as between the landlord and the tenant. The tenant is no doubt given a locus penitentiae and an option of declaring whether he is or is not willing to purchase the land held by him as a tenant. If he fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective. It is only by such a declaration by the Tribunal that the purchase becomes ineffective. If no such declaration is made by the Tribunal the purchase would stand as statutorily effected on the tiller's day and will continue to be operative, the only obligation on the tenant then being the payment of price in the made determined by the Tribunal. If the tenant commits default in the payment of such price either in lump or by instalments as determined by the Tribunal, S. 32M declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the tiller's day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tiller's day or the alternative Page 21 of 39 C/SCA/2778/2008 CAV JUDGMENT period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasible only in either of those cases and it cannot therefore be said that the title of landlord to the land is suspended for any period definite or indefinite. If that is so, there is an extinguishment or in any event a modification of the landlord's right in the estate well within the meaning of those words as used in Art. 31A(1)(a).

42. We have, therefore, come to the conclusion that the impugned Act is covered by Art. 31A and is protected from attack against its constitutionality on the score of its having violated the fundamental rights, enshrined in Arts. 14, 19 and 31 of the Constitution. That being so, the attack levelled against Ss. 5, 6, 8, 9, 17A, 31A to 31D and 32 to 32R on the score of their being violative of the fundamental rights conferred upon the petitioners is of no avail to the petitioners. This being the true position it is not necessary for us to consider the interesting questions which were argued before us at some length, viz., the nature, scope and extent of the provisions contained in Arts. 31(1) and 31(2) of the Constitution and the line of demarcation between them as also the impact of Art. 31(1) on the fundamental right enshrined in Art.19(1)(f) of the Constitution. Suffice it to say that under the circumstances no fundamental right of the petitioners before us is infringed by the impugned Act or the provisions thereof and the petitions under Art. 32 cannot be sustained.

43. The impugned Act being within the legislative competence of the State Legislature no question as to its being a piece of colourable legislation can arise. It is not a legislation resorted to by the State Legislature with a view to bypass the provisions of List 2 of the seventh schedule to the Constitution, attempting to do something which it was otherwise not competent to do. The legislation being covered by Entry 18 of the said List is really a further measure for agrarian reform which it was well within its competence to enact. It is not an expropriatory legislation in the guise of one covered by Entry 18 in the said List. It only fixes the ceiling area for the holding of the landlord cultivating the land personally and transfers the excess holding to the tenant in actual cultivation thereof and there too the price of the land as fixed by the Tribunal has got to be paid by the tenant to the landlord. The tenant also is not entitled to hold land beyond the ceiling area and there is a balance sought to be struck between the interests of the landlord and those of the tenants so that the means of production are not concentrated in the hands of one party to the common detriment. The price payable is also either in lump or in such instalments as may be determined by the Tribunal Page 22 of 39 C/SCA/2778/2008 CAV JUDGMENT and on default committed by the tenant in payment thereof the purchase becomes ineffective and the land deemed to have been purchased by the tenant reverts to the Collector to be dealt with in accordance with the provisions contained in the Act in that behalf. It may be that instalments may be spread over a particular period which may thus be determined by the Tribunal and unless default is committed by the tenant in payment of four instalments the purchase does not become ineffective. That, however, is not a provision which makes the payment of price in any manner illusory. The landlord is entitled to the rents of the land as if there had been no purchase of the land by the tenant and the payment of such rent is made the first charge on the land. There is, therefore, no scope for the argument that the provisions in this behalf contained in the Act were illusory or that the impugned Act is a piece of colourable legislation.

18. In the case of 'Amrit Bhikaji Kale and Others Vs. Kashinath Janardhan Trade and another' reported in AIR 1983 SC 643, the Supreme Court had explained in details the concept of deemed purchase on the "tillers' day". I may quote the relevant observations:

6. The Tenancy Act was comprehensively amended by Amending Act 15 of 1957. The amendment brought in a revolutionary measure of agrarian reforms making tiller of the soil the owner of the land. This was done to achieve the object of removing all intermediaries between tillers of the soil and the State. Section 32 provides that by mere operation of law, every tenant of agricultural land situated in the area to which the Act applies shall become by the operation of law, the owner thereof. He is declared to be a deemed purchaser without anything more on his part. A Constitution Bench of this Court in Sri Ram Ram Narain Medhi v. State of Bombay, 1959 Supp (1) SCR 489 at p. 518 : (AIR 1959 SC 459 at p. 472) held that :

"The title of the landlord to the land passes immediately to the tenant on the tillers's day and there is a completed purchase or sale thereof as between the landlord and the tenant. The title of the land which was vested originally in the landlord passes to the tenant on the tillers's day and this title is defeasible only in. the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal." Therefore, it is unquestionably established that on the tillers' day, the landlord's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant. That very moment landlordtenant relationship as Page 23 of 39 C/SCA/2778/2008 CAV JUDGMENT understood in common law or Transfer of Property Act comes to an end. The link and chain is broken. The absent noncultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof. This is unquestionable. The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under S. 32G. In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser. It is an admitted position that on April 1, 1957, Tarachand was the landlord and Janardhan was the tenant. Tarachand landlord was under no disability as enivsaged by Section 32F. Therefore on April 1, 1957, Janardhan became deemed purchaser and Mr. Lalit could not controvert this position.

7. If Janardhan became the deemed purchaser on tillers' day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957. This basic fact is incontrovertible.

8. It may be mentioned that Section 32F has no application to the facts of this case, Section 32F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tillers' day. Section 32F has an overriding effect over Section 32 as it opens with a nonobstante clause. The combined effect of Sections 32F and 32 would show that where the landlord is under no disability as envisaged by Section 32F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in Section 32F such as a minor, a widow or a person subject to any mental or physical disability, the date of compulsory sale would be postponed as therein provided. Now, if Tarachand the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. This conclusion, in our opinion, is unassailable.

9. If Janardhan became the owner on April 1, 1957, all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction. The Tribunal had absolutely no jurisdiction to proceed on the footing that the date of sale was postponed. It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked the jurisdiction to proceed under Section 32F were commenced. Janardhan had long since become the deemed Page 24 of 39 C/SCA/2778/2008 CAV JUDGMENT purchaser. Therefore all subsequent proceedings were ab initio void and without jurisdiction and the High Court was right in holding that orders passed therein were nullity.

10. The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of a jurisdictional fact that the recorded owner was a minor on the tillers' day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal lacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant had ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and july 13, 1967, holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957, and that legal position cannot be washed away.

11. Mr. Lalit, however, contended that the statement of Janardhan in the proceeding under Section 14 read with Section 29 of the Tenancy Act stating that he had become old and was unable to cultivate the land he is willing to hand over possession would estop the respondent from contending to the contrary. It was further urged that respondent himself was present on the date on which Janardhan gave his statement on. October 5, 1967, and he concurred with the statement of Janardhan. We are not unaware of the landed gentry exercising such influence over the tenants that in the absence of legal literacy they may make any statement contrary to their legally protected interest. A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords. However, apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nonetheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of Section 15, the land would be at the disposal of Collector under Section 32P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under Section 15 which appears not to be the case of landlord. And look at the bona fides of the landlord. Ashoklal, as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2 weeks. 'It would thus appear that even Ashoklal Page 25 of 39 C/SCA/2778/2008 CAV JUDGMENT and his next friend must be presumably aware of the void character of the order and therefore posthaste with a view to thwarting any further legal proceeding and confuse Janardhan, Ashoklal through his next friend managed to transfer the land to the petitioners and let the petitioners fight the deemed purchaser. A measure Whereby tenant was to be made the owner of the land cannot be permitted to be defeated by such jugglery of orders by lowlevel revenue officers who hardly knew what they were doing. Look at the lack of knowledge of law of the Tribunal. While overlooking the relevant date, and it took into account the subsequent date which was wholly irrelevant and impermissible. Though landlord Tarachand had died much after 14 1957, in proceeding under Section 32G minor Ashoklal whose name was mutated on death of Tarachand, the authority declared the sale having been postponed even though statute had already operated and sale taken place. Can a statutory Tribunal charged with a duty to implement the law betray such total lack of knowledge so as to be counterproductive? Same is the case with the decision of Tenancy Aval Karkoon. A proceeding under Section 14 read with Section 29 of the Tenancy Act, started on the footing that the relationship of landlord and tenant subsisted should have been thrown out at the threshold because a decade back the then tenant Janardhan had become the deemed purchaser. Therefore, these orders were wholly null and void and hence non est and cannot thwart subsequent proceedings. The nullity can be set up in subsequent proceedings.

12. Janardhan was deprived of his possession by an order which had no legal sanction. He was deprived of possession on the footing that he was a tenant ignoring and overlooking the statutory event that he had become the owner. Even when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted and there was no awakening to one's right. Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession. Subsequently, everyone realised the blunder committed by them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price. Appeal of the petitioner to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition under Section 227 of the petitioners failed. All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.

19. A Division Bench of this Court in the case of 'Motibhai Panchabhai Khristi Vs. Maganbhai Desaibhai Patel' reported in 1981 Page 26 of 39 C/SCA/2778/2008 CAV JUDGMENT GLR 107 considered the Section32(1B) and Section40 of the Act. I may quote the relevant observations as under:

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 enures for the benefits of his willing heirs. Section 40 operates on its own 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 tenacy 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 Page 27 of 39 C/SCA/2778/2008 CAV JUDGMENT 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 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 Page 28 of 39 C/SCA/2778/2008 CAV JUDGMENT Judge, therefore, resorted to Section 3(ii) of the Bombay Land. Revenue Cede 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

16. Section 2(6C) defines 'to hold land' as under:

to hold land" as an owner or tenant shall for the purposes of Clause (2D) of ibis Section and Sections 32A, 32B, 34 and 35, mean to be lawfully in actual possession of land as an owner or tenant, as the case may be.

A mere look at the said provision shows that actual possession of the land is contemplated by the definition of the phrase 'to I old land'. Only for the purpose of Sections 32A, 32B, 34 and 35 as well as Clause (2D)of Section 2 of the Tenancy Act. This means that for the purposes of other sections like Section 32(IB) as well Section 40, actual possession of the land is not a sine qua non before a person is said to have held land. N. H. Bhatt, J. was also conscious of this limited operation of Section 2(6C) and, therefore, he took the view that those words and expressions used in the Tenancy Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879 and that is how, the learned Judge resorted to the definition of the phrase 'to hold land' as per Section 3 of the Land Revenue Code. It is true that the words 'to hold land' in Section 40 have not been defined by the Tenancy Act. But Section 2(6C) of the Tenancy Act in terms mentions that for certain enumerated sections therein the words 'to hold land' must mean to be lawfully in actual possession of land. The said definition necessarily implies that for other sections, before a person can be said to be holding the land, it is not strictly necessary that he should be in actual possession of the land in question. Once Section 32(1B) and Section 40(1) are outside the sweep of Section 2(6C) 'to be in actual possession ceases to be an essential prerequisite for the decision of the question whether a person holds the land as contemplated by Section 32(1B) and/or Section 40(1) of the Tenancy Act. We have earlier mentioned that for operation of Section 40(1), the concerned tenant who dies is not required to hold the land at the time of his death. What is required for Page 29 of 39 C/SCA/2778/2008 CAV JUDGMENT operation of the said section is that he should have held tenancy rights at the time of his death. But even assuming that the concept of holding land may be implied in Section 40(1), once the said provision is read with the definition of Section 2(6C), it is clear that the provision of Section 40 does not contain a legislative mandate that the concerned tenant must be lawfully in actual possession of the land at the time of his death. There arises no occasion to refer to Section 3 of the Land Revenue Code as the term 'to hold land' has been defined by the Tenancy Act itself by Section 2(6C). Hence Section 2(21) cannot be pressed in service at all. Thus, looked at from any angle, it is clear that Section 40(1) of the Tenancy Act would operate in all cases where a statutory tenant having tenancy rights dies leaving behind him his willing heirs who are prepared to continue to be tenants of the lands in question. With great respect to the learned Judge, we are not inclined to agree with his reasoning that Section 40(1) requires for its operation the establishment of the fact that the deceased tenant at the relevant time of his death was in actual possession of the land. Once this assumption is found to be erroneous, the result is obvious that the heirs of the deceased tenant would ipso facto be entitled to inherit the tenancy rights of their predecessorininterest and Section 40(1) would squarely apply to such a case. Under these circumstances, the main plank of the decision of N.H. Bhatt, J. in Naihubftai's case (supra) is found to be unsustainable. N. H. Bhatt, J. in para 9 of his judgment also based his decision on the further ground as follows:

If the legislature wanted to confer a benefit on the tenant or his heirs, it was normally and naturally expected that wherever the word 'tenant occurred, it would have been mentioned along with the tenant or his successorininterest or heirs' also simultaneously. That having not been done, it is (in sic) enacting Section 32(1B), the Legislature had before its eyes only the original tenant do not his successorininterest. If it be argued that because of Section 40 it was not necessary to add the words or his successorininterest,' after the word 'tenant' wherever it occurred in Section 32(1B), the above interpretation of Section 40 negatives that claim.

Even this ground is found unsustainable once a conclusion is reached that Section 40(1) would apply almost automatically the moment such a tenant dies. Even the learned Judge himself has noted while putting forward this ground in support of his conclusion, that because in his view Section 40 was not applicable, the absence of the words 'or his successor' after the word 'tenant' made a significant difference, so far as interpretation of Section 32(IB) was concerned. As we have shown above, Section 40(1) will squarely apply to such cases where tenant who are dispossessed after the appointed day illegally by their landlords die survived by their willing heirs who are prepared to succeed to their tenancy rights. As Section 40(1) applies to such cases, Page 30 of 39 C/SCA/2778/2008 CAV JUDGMENT there was no need to use the words 'or his successor in interest' after the word 'tenant' in Section 32(1 B). It is, therefore, clear that the view expressed by N. H. Bhatt, J. with respect to him, is not borne out from the interpretation of Section 32(1B) read with Section 40(1). It is necessary to keep in view the fact that Section 32(1B) has been brought on the statute book years after the operation of the tillers' day legislation when the working of those provisions revealed certain lacuna which deserved to be remedied with a view to further the beneficial intention of the Legislature. Section 32(1B) was therefore enacted to plug such loophole and lacuna and with a view to provide a further remedy in cases where the tenants who were holding lands on the appointed day lost their possession illegally at the hands of the landlord and who for no fault of theirs were likely to lose the benefit of the tillers' day legislation. Such a beneficial provision has to be so read in the light of Section 40 as to make it fully effective and not to render it redundant, nugatory, or circumscribed, once the concerned tenant dies without himself being able to apply under Section 32(1B), even though leaving behind him willing heirs, ready to continue the tenancy.

17. It is further pertinent to note in this connection that certain other provisions of the Tenancy Act like Sections 29, 37 and 39 show that for the purpose of subsistence of tenancy rights it is not necessary always that the tenant concerned must be in actual possession of the land. Remedies are provided by the legislature enabling such tenants having subsisting tenancy rights to get back possession of the concerned lands by following the procedure provided by these sections. In that view of the matter also, it cannot be said that the concerned tenant at the time of his death must be in actual possession of the land before the provision of Section 40 can be pressed in service by his willing heirs for being endowded with the statutory tenancy rights or their predecessorsintitle.

18. We are, therefore, of the opinion that the decision of N.H. Bhatt, J. in Nathubhai's case (supra) with great respect to him, does not lay down the correct law. On the contrary, the decision of M.P. Thakkar, J. in the case of Bhailalbhai's case (supra) lays down the correct position in law so far as Sections 32(IB) is concerned. It is true that M.P. Thakkar, J. made the observations after he took th3 view that it was not strictly necessary to entertain the contention of the respondent landlord. Still, however, the view expressed by him on the beneficial provision of Section 32(IB) is quite acceptable and is founi by us to be fully borne out by the scheme of the Tenancy Act.

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 Page 31 of 39 C/SCA/2778/2008 CAV JUDGMENT 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 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 rarre 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 Page 32 of 39 C/SCA/2778/2008 CAV JUDGMENT 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.

19. As a result of the aforesaid discussion, the conclusion is inevitable that petitioner who is the heir of the deceased tenant is entitled to make an application under Section 32(1B) and to carry it to its logical conclusion. B.K. Mehta, J. has found on facts that other requirements of Section 32(1B) have been complied with. Once we come to the conclusion that benefit of Section 32(1B) is also available to the heirs of the deceased tenant, the conclusion is inevitable that the Mamlatdar and Agricultural Lands Tribunal had rightly held in favour of the petitioner and the Gujarat Revenue Tribunal was not justified in reversing the decision of the Mamlatdar and the Agricultural Lands Tribunal as confirmed by the Deputy Collector.

20. Let me now discuss some factual aspects of the matter. The land in question bearing Survey No.74, Block No.86, admeasuring 01 Hec. 78 Are - 37 Sq.mtrs. situated in the sim of Village - Ladavi, Taluka - Kamrej, District Surat, was owned by one Bhagwandas Ghelabhai. On the demise of Bhagwandas Ghelabhai, the land in question came to be inherited by his widow Chanchalben, daughter Ujamaben, and son Dalpatbhai. According to the case of the applicants, Dalpatbhai was a lunatic.

21. Kalabhai Devji was cultivating the land in question as a tenant. On the demise of Kalabhai, the tenancy rights were inherited by Keshavbhai Kalyanbhai (original respondent herein). The name of Keshavbhai Kalyanbhai was entered in the revenue record as a tenant vide mutation entry No.37, which came to be certified on 01/02/1955. The village form No.7/12 on record would also indicate that the name of Keshavbhai Kalyanbhai was there as a tenant since 1955. Thus, it is not dispute that on 01/04/1957, i.e. the tillers' day, Keshavbhai Kalyanbhai Page 33 of 39 C/SCA/2778/2008 CAV JUDGMENT was the tenant of the land in question and was cultivating the same. Keshavbhai Kalyanbhai passed away on 07/07/2015 i.e. during pendency of the present application. As Keshavbhai Kalyanbhai was a tenant cultivating the land on 01/04/1957, he became a deemed purchaser under Section32 of the Act, 1948. The decision of the Supreme Court in the case of Sri Ram Ram Narain Medhi (supra) makes the position of law in this regard clear, more particularly, the observations as contained in Paragraph6 at Page466. The observations have been referred to above.

22. It appears that the proceedings were initiated before the Mamlatdar under Section32G of the Act for fixing the purchase price. Such application was filed on 21/09/1995 by Keshavbhai Kalyanbhai through his General Power of Attorney Holder Bhikhabhai Maganbhai Mistry. The proceedings under Section32G of the Act can be initiated by the Mamlatdar suo moto or by an application of the parties. In the proceedings under Section32G, the authorities concerned cannot go into the question of title of tenant as the tenant could be said to be a deemed purchaser on 01/04/1957. All that is required to be done by the Mamlatdar is to fix the price. In the case on hand, the Mamlatdar fixed the price by his order dated 22/02/1996.

23. The land owners preferred an appeal being tenancy appeal No.39 of 1996. The appeal came to be dismissed by the Deputy Collector by his order dated 29/12/1997. The land owners thereafter filed a revision application before the Gujarat Revenue Tribunal under Section76 of the Act. The revision application also came to be rejected by an order dated 27/12/2006.

24. It appears from the materials on record that the tenant paid the Page 34 of 39 C/SCA/2778/2008 CAV JUDGMENT purchase price as fixed by the Mamlatdar and pursuant to the same, a certificate under Section32M of the Act also came to be issued on 28/12/2007. The issue of the certificate under Section32M of the Act is a conclusive proof or evidence of purchase.

25. The principal argument of Mr. Sanjanwala, the learned senior counsel appearing for the applicants is that the landlord was a lunatic and in such circumstances, the purchase got deferred for the period between 01/04/1957 and 29/12/1990. According to Mr. Sanjanwala, Keshavbhai Kalyanbhai had acquired British Citizenship and had migrated to London. If that be so, then the determination of the purchase price as on 01/04/1957 should have been declared as illegal and the purchase price as on 29/12/1990 could not have been fixed. To put it in other words, according to the learned counsel, the Mamlatdar had not followed the procedure as laid down under Section72 of the Tenancy Act.

26. I am afraid having regard to the concurrent findings recorded by the three authorities and in the absence of any materials on record to even remotely indicate about the aspect of the lunacy, the submission of Mr. Sanjanwala should fail. In fact, no such issue was raised before any of the authorities.

27. In the course of the hearing of this matter, Mr. Sanjanwala, the learned senior counsel showed to this Court a 7/12 extract with regard to the land in question, in which, it has been stated as under: "Manager, Nazir, District Court, Surat, of the property of lunatic Dalpatram Bhagwandas."

Relying on this, Mr. Sanjanwala very vociferously submitted that Page 35 of 39 C/SCA/2778/2008 CAV JUDGMENT as Dalpatram was a lunatic, the Nazir of the District Court, Surat was appointed to manage the affairs of the property. This document is sought to be relied upon for the first time before this Court in a petition under Article 227 of the Constitution of India.

28. I am of the view that it is not permissible for this Court to look into any new evidence at this point of time and more particularly, when this Court is exercising its supervisory jurisdiction under Article227 of the Constitution being a Court of record.

Mr. Sanjanwala, in the alternative submitted that if the Court is not inclined to take new evidence into consideration, then the matter may be remitted to the authority for this purpose. To put it in other words, according to Mr. Sanjanwala, if the matter is remitted to the authority concerned, then appropriate evidence can be led and the position can be clarified.

I am not impressed by such submissions of Mr. Sanjanwala. At this point of time, after these many years, it would not be proper for this Court to remit the matter for fresh consideration. I am saying so because the issue as such is very limited. All submissions of Mr. Sanjanwala pales into insignificance in view of the fact that Keshavbhai Kalyanbhai was cultivating the land on 01/04/1957 and he became the deemed purchaser under Section32 of the Act, 1948. At the time, when the proceedings were initiated to fix the purchase price, whether Keshavbhai Kalyanbhai was in India or not, would not make any difference because he was a deemed purchaser. All that was necessary to be done was to initiate the proceedings and get the price fixed. This was done in accordance with the provisions of the Act and the purchase price was fixed and paid. As noted above, the certificate under Section32M of the Page 36 of 39 C/SCA/2778/2008 CAV JUDGMENT Act also came to be issued. The matter should end over here.

29. My aforesaid view is fortified by a decision of the Supreme Court in the case of 'Altaf Khan Vs. Mohd. Amin Khan And Others' reported in 1995 Supp (4) SCC 725. In the said case, the plaintiff - respondent obtained an order of temporary injunction from the trial Court. The appellate court upset it at the instance of the appellant who was a defendant therein. An effort was made by the plaintiffrespondent to introduce certain documents before the appellate court in order to strengthen his case in support of the order of the trial court. The appellate court declined that prayer and went on to upset the order of the trial court. On being approached by the plaintiffrespondent under Article 227 of the Constitution, the High Court found fault with the appellate court in declining to take into consideration documents sought to be introduced by the plaintiff to support hist case. Not only did the High Court take those documents on record but also went on to examine them and form its own view on merits.

In the aforesaid factual background, the Supreme Court observed as under: "We are of the considered view that the High Court should not have substituted its own opinion on the merits of the case on induction of documents at the instance of the plaintiffrespondent. Having taken those documents on record, it ought to have remanded the matter back to the lower appellate court for its opinion, for, its opinion was necessary as the final court of fact. What the High Court should have done then, we are obliged to do now."

30. I would like to refer and rely upon one another decision of the Supreme Court in the case of 'Raj Kumar Dixit Vs. Vijay Kumar Gauri Shanker, Kanpur Nagar' reported in (2015) 9 SCC 345. In the said case a contention was urged on behalf of the respondent Firm that the Page 37 of 39 C/SCA/2778/2008 CAV JUDGMENT award of compensation of Rs.2 Lakh in lieu of reinstatement and 50% back wages was on account of closure of the respondent establishment. The Supreme Court took notice of the fact that such contention was neither supported by any pleading nor any evidence had been adduced in that regard before the Labour Court or the Supreme Court by the respondent establishment. In such circumstances, the Supreme Court proceeded to hold as under: ".....If any additional material is produced before the High Court, the same would be impermissible in law for the reason that the respondent employer was required to plead with regard to the alleged closure and substantial evidence must be produced in support of the same before the Labour Court at the first instance, and no such plea has been taken before the Labour Court by them. In the absence of such a plea, producing additional documents by the respondent establishment before the High Court is totally impermissible in law for the reason that the High Court's jurisdiction is to examine the correctness of the award passed by the Labour court in exercise of its judicial review power under Article 227 of the Constitution of India which is very limited."

31. Under Section31, the landlord had a right to terminate the tenancy within one year from the date, on which, the mental or physical disability ceased to exist under Section31(2)(iii). By Gujarat Act (5), 1973, Subsection(4) of the Section31 came to be introduced in the Tenancy Act, by which, the right of a disable landlord has to be exercised within a period of six months from the specified date i.e.03/03/1973. The said Section31(4) of the Gujarat Act 5 of 1973 reads as under: "Section31: Landlord right to terminate tenancy for personal cultivation and nonagricultural purpose:...

(1) to (2) xxxx (3) Where a landlord is a minor, or a widow, or a person subject to mental or physical disability then such notice may be given and as application for possession under section 29 may be made-

(i) and (ii) xxxx

(iii) within one year from the date on which mental or physical Page 38 of 39 C/SCA/2778/2008 CAV JUDGMENT disability ceases to exist; and provided that......xxxxxx (4) Notwithstanding anything contained in subsection (3),

(a) the right conferred under the said subsection(3), on a landlord who is a minor or a person subject to mental or physical disability shall, after the specified date, be exercisable.

(i) by such landlord, in a case where the period of one year within which such right may be exercised under subsection (3) has commenced, within such period of one year or within a period of six months from the specified date, whichever period expires earlier;"

(b) xxxx...(i) to (iii) xxxx

32. Assuming for a moment that Dalpatbhai was a lunatic on 01/04/1957, he was supposed to exercise his right for termination of the tenancy within a period of six months from the specified date 03/03/1973. It seems that the landlord failed to take appropriate steps in this regard.

33. In the overall view of the matter, I have reached to the conclusion that I should not disturb the concurrent findings recorded by the three revenue authorities.

34. In view of above, this application fails and is hereby rejected. Rule is discharged. Adinterim order, if any, stands vacated.

(J.B.PARDIWALA, J) aruna Page 39 of 39

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