Gujarat High Court
State Of Gujarat & vs Vallabhbhai Parshottambhai Patel on 1 May, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/926/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 926 of 2008
In SPECIAL CIVIL APPLICATION NO. 12976 of 2005
With
LETTERS PATENT APPEAL NO. 775 of 2008
In
SPECIAL CIVIL APPLICATION NO. 9609 of 2006
With
LETTERS PATENT APPEAL NO. 890 of 2008
In
SPECIAL CIVIL APPLICATION NO. 12984 of 2005
With
LETTERS PATENT APPEAL NO. 896 of 2008
In
SPECIAL CIVIL APPLICATION NO. 11799 of 2005
With
LETTERS PATENT APPEAL NO. 897 of 2008
In
SPECIAL CIVIL APPLICATION NO. 12178 of 2005
With
LETTERS PATENT APPEAL NO. 2587 of 2010
In
SPECIAL CIVIL APPLICATION NO. 1281 of 2009
With
LETTERS PATENT APPEAL NO. 927 of 2008
In
SPECIAL CIVIL APPLICATION NO. 12977 of 2005
With
LETTERS PATENT APPEAL NO. 178 of 2009
In
SPECIAL CIVIL APPLICATION NO. 29898 of 2007
FOR APPROVAL AND SIGNATURE:
Page 1 of 16
C/LPA/926/2008 JUDGMENT
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT & 1....Appellant(s)
Versus
VALLABHBHAI PARSHOTTAMBHAI PATEL....Respondent(s)
Appearance In LPA Nos. 926, 896, 897 & 927 of 2008 :
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ROHAN YAGNIK,
ASST GOVERNMENT PLEADER for the Appellant(s) No. 1 - 2
MR SUDHIR NANAVATI, SENIOR COUNSEL WITH MR MRUGEN K
PUROHIT, ADVOCATE for the Respondent(s) No. 1
Appearance In LPA No. 775 of 2008 :
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ROHAN YAGNIK,
ASST GOVERNMENT PLEADER for the Appellant(s) No. 1 - 2
MR SUDHIR NANAVATI, SENIOR COUNSEL WITH MR MRUGEN K
PUROHIT, ADVOCATE for the Respondent(s) No. 1
MR RR VAKIL , ADVOCATE for the Respondent(s) No. 36 - 38
MR KK TRIVEDI, , ADVOCATE for the Respondent(s) No. 39
Appearance In LPA No. 890 of 2008 :
Page 2 of 16
C/LPA/926/2008 JUDGMENT
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ROHAN YAGNIK,
ASST GOVERNMENT PLEADER for the Appellant(s) No. 1 - 2
MR DILIP KANOJIA, ADVOCATE for Respondent No. 1
Appearance In LPA No. 2587 of 2010 :
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ROHAN YAGNIK,
ASST GOVERNMENT PLEADER for the Appellant(s) No. 1 - 5
MR KK TRIVEDI, ADVOCATE for Respondent No. 1, 2.1-2.7, 3 TO 6
Appearance In LPA No. 178 of 2009 :
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR ROHAN YAGNIK,
ASST GOVERNMENT PLEADER for the Appellant(s) No. 1 - 2
MR NIKHIL KARIEL, ADVOCATE for Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 01/05/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. We have heard learned advocates appearing for the parties.
2. Letters Patent Appeals No. 926, 775, 890, 896, 897 and 927 of 2008 have been filed challenging the common judgement and order dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters whereby the learned Single Judge partly allowed the writ petitions and quashed the impugned orders passed by the Mamlatdar with a direction to the Mamlatdar to decide all concerned cases afresh after giving opportunity of hearing to all affected parties in light of the Page 3 of 16 C/LPA/926/2008 JUDGMENT observations made and conclusions recorded in the said judgement. The learned Single Judge also quashed the circular dated 07.10.2005 passed by the State Government as the learned Single Judge observed that the same is ultra vires so far as it relates to the withdrawal of the power of the Mamlatdar under Section 70(o) of the Act and conferring the power upon the Collector to decide the question of transferability of the rights of the tenant or permanent tenant, as the case may be.
2.1 Letters Patent Appeal No. 178 of 2009 has been filed challenging the order dated 04.04.2008 passed by the learned Single Judge in Special Civil Application No. 29898 of 2007 whereby the learned Single Judge disposing of the petition directed the appellant no. 2 to take appropriate steps to implement the decision of the Mamlatdar and ALT dated 19.10.2002 in Tenancy Case No. 100 of 2001 within a period of one month from the date of receipt of the order.
2.2 Similarly, Letters Patent Appeal No. 2587 of 2010 has been filed challenging the order dated 30.03.2009 passed by the learned Single Judge in Special Civil Application No. 1281 of 2009 whereby the learned Single Judge disposing of the petition directed the appellant to carry out the entries in question subject to the final outcome of Letters Patent Appeal No. 775 of 2008 which was pending at the relevant time.
3. The appellants by way of the writ petition had challenged the order of the Mamlatdar dismissing the application under Section 70(o) of the Act for declaration of Page 4 of 16 C/LPA/926/2008 JUDGMENT the status as permanent tenant with a transferable right.
4. Mr. Kamal Trivedi, learned Advocate General appearing with Mr. Rohan Yagnik, learned AGP for the appellants submitted that there is a marked difference between 'Permanent Tenant' and 'Protected Tenant'. He submitted that section 2(10A) of the Act defines the term 'Permanent Tenant' whereas Section 2(14) read with Section 4A and further read with Schedule 1 to the Act deal with the term 'Protected Tenant'.
4.1 Mr. Trivedi further submitted that Section 32 of the Act declares that every tenant who as on 01.04.1957 i.e. tiller's day was cultivating the land personally will be deemed to have purchased the said land. He has drawn the attention of this Court to sub-section (1) of Section 43 of the Tenancy Act and submitted that sole idea in providing for such a restriction was to see that the tenants after having become 'deemed purchasers' continue to remain owners of the land only so long as they permanently cultivate it and must make use of the land for the purpose for which it was given to them as owners. He submitted that the said logic has been very succinctly explained by this Court in the case of Shashikant Mohanlal Desai vs. State of Gujarat reported in AIR 1970 Guj. 204 in the following words:
"....If the tenant failed to cultivate the land personally either by keeping it fallow or by putting it to non-agricultural use, he would lose the land under Section 32B and the land would be given away to others for personal cultivation in accordance with the provisions of Section 84-C. Page 5 of 16 C/LPA/926/2008 JUDGMENT ..... the Legislature by enacting Section 43 placed an embargo on the tenant transferring the land deemed to be purchased by him. If the tenant were free to transfer the land to anyone he liked, the object and purpose of making him the deemed purchaser of the land would be frustrated....
.....The Legislature has also similarly provided in Section 43 that if the tenant who is otherwise under an inhibition to transfer, wants to transfer the land, he shall do so only on payment of such amount as the State Government may by general or special order determine. That is the charge which the State makes for permitting transfer where the occupancy is not transferable as of right......"
4.2 Mr. Trivedi submitted that in the year 1960, it was thought that in case of 'Permanent Tenant', they might have had right of alienation before they were deemed to have purchased the lands on Tillers' Day and that therefore such 'Permanent Tenants' should be relieved from the aforesaid restriction. He submitted that it is with this objective that sub-section 1(B) came to be added in section 43 with effect from 13.12.1960.
4.3 Mr. Trivedi submitted that the provisions of T.P. Act, 1882 as contained in its Chapter - V and more particularly in section 108(6) relating to the rights of lessees to transfer absolutely their interest in the immovable properties are not extended by section 3 of the Tenancy Act to 'artificial categories' of tenants created under the Tenancy Act since by their very nature the said provisions of Chapter - V of T.P. Act are applicable only to contractual tenancies. He has relied upon the decisions of this Court in the cases of Thakorelal Amratlal Vaidya vs. Gujarat Revenue Tribunal reported in AIR 1964 Guj. 183 and Laxmiram Ratanji vs. Special Page 6 of 16 C/LPA/926/2008 JUDGMENT Land Acquisition Officer, ONGC reported in AIR 1974 Gujarat 103 in support of his submissions.
5. Mr. Sudhir Nanavati, learned Senior Counsel appearing with Mr. Mrugen Purohit, learned advocate for the respondents supported the impugned order passed by the learned Single Judge. Mr. Nanavati has drawn the attention of this Court to the relevant provisions of the Bombay Tenancy & Agricultural Lands Act, 1948 as well as Bombay Tenancy Act, 1939 and submitted that the ancestors of the respondents were farming the land in question in their capacity as protected tenants but could not get the rights of permanent tenants.
5.1 Mr. Nanavati has tried to distinguish permanent tenants, protected tenants and contended that if restriction as argued by the learned Advocate General on behalf of the State Government is accepted then the language of sub section 1(B) of Section 43 of the Act shall be negated.
6. It shall be beneficial to peruse the relevant portion of the statement of objects and reasons by the amendment made in section 43 of the Tenancy Act which is reproduced hereunder:
"Clause 1.6 - This clause restores to the Permanent Tenant the right of alienation, etc., which they might have had before they were deemed to have purchased the lands on the Tillers' Day. It also eliminates the necessity of approaching the Collector for mortgaging or creating the charge in favour of the Government or Co-operative Societies."Page 7 of 16
C/LPA/926/2008 JUDGMENT 6.1 In the decision rendered by this Court in the case of Laxmiram Ratanji (supra), the Apex Court has observed as under:
"3. Mr. V. J. Desai. the learned Advocate. who appeared on behalf of the appellants did not challenge the amount of compensation ascertained by the Special Land Acquisition Officer. The only contention before me is that as the applicants were the permanent tenants of the land their case would be governed by Section 27 of the Bombay Tenancy Act and their right being heritable and transferable it was not necessary for them to pay any premium to the Government if they c4iose to transfer the land and hence 1/3rd deduction made by the Special Land Acquisition Officer from the amount of compensation was not proper.
5.... In my opinion, the learned Advocate for the appellant is not right in his submission that a permanent tenant when he becomes a deemed purchaser had an absolute right of transferring his land without obtaining the sanction of the Collector. Section 27 of the Act could be applicable so long as he was a Permanent tenant of the land and would have no application when he becomes a deemed Purchaser under the Provisions of Section 32 of the Act. The only section which governed the rights and liabilities of the deemed purchaser is Section 43 (113) relied upon by the learned Advocate which exemption those ,permanent tenants who by usage. custom. agreement or decree or order of a court. held a transferable right in the tenancy of the land. It is not proved by the present appellants that by any usage, custom. agreement. or decree or order of a Court they possess a transferable right In the tenancy of the land. They merely placed reliance on Section 27 of the Act which as observed earlier could have no application after the permanent tenant became the deemed Purchaser. They would be exempted only under the provisions of sub-clause 1(B) of clause 2 of section. 43 of the Act and sub-clause (113) only exempts those Permanent tenants who by usage. custom. agreement or decree or order of a Court Page 8 of 16 C/LPA/926/2008 JUDGMENT held a transferable right in the tenancy of the land. As the appellants had failed to prove that their case was covered by the provisions of sub-clause (113) of clause 2 of See. 43 it could not be said that the award passed by the learned Judge was wrong,"
7. We are of the opinion that the very object of the Act is to give and protect the rights of the tenants. With the objective of relieving permanent tenants from the restrictions on transfer of land, sub-section 1(B) of the Act came to be added in section 43 with effect from 13.12.1960. This arrangement is only for the permanent tenants who have a right declared by the competent authority that the land was used and he should have a transferable right in the tenancy of the land by usage, custom, agreement, decree or order of a Court. In that view of the matter this transfer is to be understood under the Tenancy Act and not under the Transfer of Property Act.
7.1 In that view of the matter the only clause which is the subject matter of the argument and challenge before this Court is clause no. (3) of para 42 of the impugned judgement and order dated 17.18.23/01/02007 and on the basis of which the learned Single Judges have decided Special Civil Application No. 1281 of 2009 and 29898 of 2007 and the same reads as under:
"(3) While deciding the question of transferability of the tenancy right of a tenant, in case of contractual tenancy, if it is proved that one is a permanent tenant for the requisite period, the transferability of the tenancy rights as per the Transfer of Properties Act would be presumed unless contrary proved by express conditions of the tenancy agreement. "
7.2 In the decision rendered by this Court in the case of Page 9 of 16 C/LPA/926/2008 JUDGMENT Thakorelal Amratlal Vaidya (supra), this Court has in paras 6, 7 & 10 held as under:
"6. It is no doubt true that Section 4 creates a legal fiction and makes a person a tenant who would not otherwise be a tenant but for the provisions of that Section. But it must be remembered that legal fictions are created only for some definite purpose. The judicial decisions referred to in the dissenting judgment of S. R. Das, J., as he then was, in state of Travancore-Cochin v. Shanmugha Vilas Cashew- Nut Factory, 1954 SCR 53 : (AIR 1953 S C 333) and the case of East End Dwellings Co. Ltd., v. Fins-bury Borough Council, 1952 AC 109, clearly indicate that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. The fiction in the present case is obviously created for the purpose of the Tenancy Act and it would not be right to extend the fiction beyond the provisions of the Tenancy Act into the field occupied by the Transfer of Property Act. A deemed tenant under Section 4 would certainly be a tenant for all purposes under the Tenancy Act and every provision of the Tenancy Act which refers to a tenant would apply equally to a deemed tenant under Section 4, but such a deemed tenant would not be a tenant for the purposes of the Transfer of Property Act. The Transfer of Property Act defines a tenant -- and such a tenant is clearly a contractual tenant -- and unless a person falls within this definition, he cannot be said to be a tenant within the meaning of that expression as used in the Transfer of Property Act. A deemed tenant under Section 4 would not fall within the definition of a tenant under the Transfer of Property Act and would not, therefore, be a tenant contemplated by the Transfer of Property Act. It will, therefore, be seen that a deemed tenant under Section 4 is not a tenant for all purposes. He is not enuated with a tenant under the Transfer of Property Act, namely, a contractual tenant in all respects. The, equivalence between a contractual tenant under the Transfer of Property Act and a Page 10 of 16 C/LPA/926/2008 JUDGMENT deemed tenant under Section 4 is limited to the provisions of the Tenancy Act and cannot be carried beyond those provisions and merely because a contractual tenant under the Transfer of Property Act has an estate or interest in the land, it does not follow that a deemed tenant under Section 4 must also nave an estate or interest in the land. A deemed tenant under Section 4 is a creature of statute unlike a contractual tenant under the Transfer of Property Act who is a creature of contract and the legal character of a deemed tenancy is different from that of a contractual tenancy. We may venture to stale that even if the fiction created by Section 4 were not limited to the provisions of the Tenancy. Act and were applied wherever the relationship of landlord and tenant fell to be considered, it would not be possible to take the view that the legal character of a contractual tenancy under the Transfer of Property Act, namely, that it represents an estate or interest in the land can affect deemed tenancy under Section 4 and a deemed tenant under Section 4 can be said to have an estate or interest in the land. The legal fiction in such a case might attract the legal incidents provided for s contractual tenancy by the Transfer of Property Act but it would be difficult to hold that deemed tenancy under Section 4 is invested with the same legal character as contractual tenancy in the sense that a deemed tenant under Section 4 has estate or interest in the land like a contractual tenant. That Question, however, does not arise since the legal fiction enacted in Section 4 is clearly and indubitably limited to the provisions of the Tenancy Act and the only affect of that legal fiction is that every provision of the Tenancy Act applies as much to a contractual tenant as to a deemed tenant. Mr. B.G. Thakore is, therefore, not right in his contention that since a contractual tenant has an estate or interest in the land, a deemed tenant under Section 4 must also equally have an estate or interest in the land.
7. This conclusion which we are inclined to reach is fortified when we turn to the definition of "tenant"
in Section 2 (18). That Section defines a tenant to Page 11 of 16 C/LPA/926/2008 JUDGMENT mean a person who holds land on lease, meaning thereby a contractual tenant, and includes amongst other persons, a person who is deemed to be a tenant under Section 4. This definition of tenant clearly indicates that wherever the expression tenant is used in the Tenancy Act, it means not only a contractual tenant but also a deemed tenant under Section 4 and that it is only for the purpose of extending the scope and ambit of the expression "tenant" as used in the Tenancy Act that the concept of a deemed tenant has been created by the Legislature by enacting Section 4. The Legislature introduced the Tenancy Act on the statute book with a view to conferring certain benefits and protections on tenants against landlords, Now ordinarily the expression "tenant" would mean a contractual tenant, but the Legislature desired that the benefits and protections conferred by the Tenancy Act should not be limited only to contractual tenants but should also extend to persons lawfully in cultivation of and belonging to another and the Legislature, therefore, created by Section 4 an artificial class of persons and deemed them to be tenants so that they would also have the advantage of the beneficent provisions of the Tenancy Act. It was for the purpose of extending the benefits and advantages of the Tenancy Act to this class of persons that the Legislature created the fiction of a deemed tenant under Section 4. The object and purpose of the fiction was not to alter the legal content of the expression "tenant" ss understood in the ordinary law of landlord and tenant so as to include within the coverage of that expression for all purposes a deemed tenant under Section 4. We can-not, therefore, agree with Mr. B.G. Thakore that a deemed tenant under Section 4 must be treated for all purposes and in al! respects as a contractual tenant to such an extent that just as a contractual tenant has an estate or interest in the land, so also a deemed tenant under 'Section 4 must be regarded as having an estate or interest in the land.
10. We have already set out the contention of Mr, Page 12 of 16 C/LPA/926/2008 JUDGMENT
3. G. Thakore based on the provisions of Section 3. Th3 contention briefly was that by reason of Section 3, Section 111 of the Transfer of Properly Act applied to a deemed tenancy under Section 4 and a deemed tenancy under Section 4 was, therefore, heritable by virtue of the application of Section 111 of the Transfer of Properly Act. The contention was based on the rather curious premise that Section 111 of the Transfer of Property Act by omitting to provide that a tenancy shall be determined on the death of a tenant made the tenancy heritable and that a deemed tenancy under Section 4 to which Section 111 of the Transfer of Property Act applied was also, therefore, heritable. The premise is, in our opinion, clearly wrong. A contractual tanancy under the Transfer of Property Act is heritable not because of Section 111 of the Transfer of Property Act but because it constitutes an estate or interest in the land which passes on to the heirs by the operation of the Law of Succession. Section 111 of the Transfer of Property Act merely provides various modes for determination of a contractual tenancy but so long as a contractual tenancy is not determined by any of the modes provided by that Section and continues to subsist, it can always devolve by succession, testate or intestate. Of course if Section 111 of the Transfer of Property Act had provided that the tenancy of a tenant shall be determined on his death, the tenancy would not have been heritable by the heirs nor would it have been capable of passing by testamentary disposition but that would have been so, because the tenancy having come to an end on the death of the tenant, there would have been no property which could be inherited by the heirs or which could pass by testamentary disposition. Such an express provision in Section 111 of the Transfer of Property Act would have prevented the operation of the Law of Succession by destroying the properly belonging to the tenant. But when there is no such express provision in Section 111 of the Transfer of Property Act, the law of succession operates on the property of the tenant, namely, his estate or interest in the land, and the tenancy devolves on the heirs if there is intestacy and on Page 13 of 16 C/LPA/926/2008 JUDGMENT the legatees if there Is testamentary disposition. Such legal result follows on account of the law of succession and not on account of Section 111 of the Transfer of Property Act. It is, therefore, not right on the part of Mr. B. G. Thakore to contend that because Section 111 of the Transfer of Property Act applies to a deemed tenancy under Section 4, a deemed tenancy under Section 4 is heritable. If Section 111 of the Transfer of Property Act does not make a contractual tenancy heritable, equally it cannot make a deemed tenancy under Section 4 heritable. Besides it is not a correct proposition to state that Section 111 of the Transfer of Property Act applies to a deemed tenancy under Section 4. The provisions of Chapter V of the Transfer of Property Act are not applicable to agricultural leases by reason of Section 117 of the Transfer of Property Act. Section 3, therefore, makes those provisions applicants to agricultural leases in so far as they are not inconsistent with the Tenancy Act. What Section 3 intends to achieve Is to put agricultural leases on the same footing as other leases in so far as the applicability of the provisions of Chapter V of the Transfer of Property Act is concerted except to the extent to which they are inconsistent with the provisions of the Tenancy Act. The provisions of Chapter V of the Transfer of Property Act are not extended by Section 3 to the artificial category of tenants created by the Tenancy Act, for by their very nature they are applicable only to contractual tenancies. But apart altogether from this consideration it is apparent that Section 111 of the Transfer of Property Act cannot In any event apply to a deemed tenancy under Section 4 since it is inconsistent with Section 14 and the contention of Mr. B. G. Thakore based upon the applicability of Section 111 of the Transfer of Property Act by virtue of Section 3 must, therefore, fail. "
8. We are of the opinion that if one cumulatively takes into account the provisions of Sections 3, 14 and 27 of the Tenancy Act read with Section 117 of T.P. Act, the only conclusion which could be drawn is to the effect that the status of a Page 14 of 16 C/LPA/926/2008 JUDGMENT person as 'Permanent Tenant' does not per se pre-suppose that the said 'Permanent Tenant' had a transferable right in the tenancy of the land, unless the permanent tenant proves that prior to his becoming a permanent tenant he held a transferable right by usage, custom, agreement or decree or order of a Court. We are of the view that the two expressions I.e. 'Permanent Tenant' and 'Transferable Right in the tenancy of land' are not synonyms or part and parcel of each other but the same are distinct and independent of each other for the purposes of the Tenancy Act and more particularly for the purpose of section 43(1B) of the same Act.
8.1 In view of the above discussion, the conclusion reached by the learned Single Judge in para 42 clause (3) of the impugned judgement and order is required to be modified so far as the applicability of Transfer of Property Act, 1882 is concerned in the matter of operation of various provisions including that of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. We are of the opinion that the transfer of tenancy right is required to be decided under the Tenancy Act and not under the Transfer of Properties Act. Therefore clause no. (3) of para 42 is required to be quashed and set aside. No other contention has been raised by learned advocate for the appellant.
8.2 As clause no. (3) of para 42 of the impugned judgement dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters is quashed and set aside, the orders dated 4.04.2008 passed by the learned Single Judge in Special Civil Application No. 29898 of 2007 and 30.03.2009 passed by the learned Page 15 of 16 C/LPA/926/2008 JUDGMENT Single Judge in Special Civil Application No. 1281 of 2009 also require to be quashed and set aside in view of the fact that the learned Single Judges in Special Civil Applications Nos. 29898 of 2007 and 1281 of 2009 have relied upon the decision dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters.
9. In the premises aforesaid, clause no. (3) of para 42 of the impugned judgement dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters is hereby quashed and set aside. The transfer of tenancy shall be governed as per the provisions of Bombay Tenancy & Agricultural Lands Act, 1948. Appeals are allowed accordingly.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) divya Page 16 of 16