Gujarat High Court
Sikandarkha Ahmedkhan Pathan & 2 vs Sardar Patel University on 1 May, 2014
Author: Anant S.Dave
Bench: Anant S. Dave
C/SCA/18106/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18106 of 2011
With
SPECIAL CIVIL APPLICATION NO. 17409 of 2011
With
SPECIAL CIVIL APPLICATION NO. 8141 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
================================================================
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 ?
================================================================ SIKANDARKHA AHMEDKHAN PATHAN & 2....Petitioner(s) Versus SARDAR PATEL UNIVERSITY....Respondent(s) ================================================================ Appearance:
MR JITENDRA M PATEL, ADVOCATE for the Petitioners in SCA Nos. 18106 of 2011 and 17409 of 2011 MR A J PATEL, ADVOCATE for the respondent-University in SCA Nos. 18106 of 2011 and 17409 of 2011 MR A J PATEL, ADVOCATE for the petitioner-University in SCA No.8141 of Page 1 of 29 C/SCA/18106/2011 CAV JUDGMENT 2004.
Mr. R.A. Patel, Advocate for the respondent in SCA No.8141 of 2004 Ms. Amita Shah, AGP, for the respondent-State. ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/05/2014 COMMON CAV JUDGMENT 1 Special Civil Application Nos.18106 of 2011 and 17409 of 2011 are filed by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, who was cultivating land bearing Survey No.2095, admeasuring 3 acre and 6 gunthas situated in the sim of village Bakrol, Taluka & District: Anand, since 195051. One Shankarbhai Gokalbhai Bin Dwarkadas was the owner of the land and the name of late Shri Ahmedkhan Pathan was shown as tenant in the revenue record from the year 19501951 to 19641965. By virtue of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 [for short 'Tenancy Act'], the tenant, late Shri Ahmedkhan, became 'deemed purchaser' of the land with effect from 1.4.1957, which is otherwise called as 'the tillers' day'.
2 In view of the above, the case of the petitioners is that interest of the landlord or any other person claimed through the landlord got extinguished and relationship between the tenant and the State Government came into existence.
3 It is also the case of the petitioners that, by virtue of the Page 2 of 29 C/SCA/18106/2011 CAV JUDGMENT proceedings initiated under Section 32G of the Tenancy Act, purchase price of the said land was fixed and a certificate under Section 32M of the Tenancy Act was issued and the proceedings under the Tenancy Act are pending before the Gujarat Revenue Tribunal being Revision Application No.TEN. BA. 436 of 1998.
Further, Special Civil Application No.8141 of 2004 filed by Sardar Patel University, the respondent herein, challenging the order dated 15.12.2003 passed by the State Government in a proceeding under Section 32P(2)[c] of the Tenancy Act is pending before this Court, which is ordered to be taken for hearing along with these two petitions. It is the further case of the petitioners that, in view of Sections 85 and 85A of the Tenancy Act, there is bar of jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal and the suits involving issues required to be decided under the Tenancy Act as per the newly inserted Section 85A whereby the Civil Court shall have to stay the suit and refer such issues, namely, issues pertaining to the suit instituted, whether before or after the specified date, i.e. 3.3.1973, which involves any issues which are required to be settled, decided or dealt with by the authority competent to settle, decide or deal with such issues under the Tenancy Act, to such competent authority for determination.
4 In the context of the aforesaid facts, Special Civil Application No.18106 of 2011 arises out of rejection of application Exh.134 filed by the present petitioners, defendants therein, by the learned Page 3 of 29 C/SCA/18106/2011 CAV JUDGMENT Civil Judge (S.D.), Anand, vide order dated 8.9.2011, in Special Civil Suit No.69 of 1994, to refer the dispute about 'tenancy' raised by the defendants to Mamlatdar in view of sections 85 and 85A of the Tenancy Act.
5 Special Civil Application No.17409 of 2011 challenges legality and validity of the order dated 27.7.2011 passed by the learned Civil Judge (S.D.), Anand, allowing application Exh.140 in Special Civil Suit No.69 of 1994 filed by the respondent to proceed with Special Civil Suit No.69 of 1994.
6 Challenge in Special Civil Application No. 8141 of 2004 filed by Sardar Patel University through its Registrar, is to the order dated 13.12.2003 received on 31.5.2004, passed by the Secretary, Revenue (Appeal), Gujarat State, whereby, the case is remanded to the Mamlatdar and Agricultural Lands Tribunal, Anand, by issuing certain directions.
7 It is the case of the petitioner, Sardar Patel University, that the University wanted to expand its educational, cultural and allied activities, hence, the University purchased the subject land from the original owners, respondent Nos. 4 to 19 herein, by paying a total consideration of Rs.45,000/ by a registered sale deed dated 9.1.1970 and, on the basis of the said sale deed, the subject land was mutated in the name of the University and it was certified in due course. After lapse of about 23 years, the legal heirs Page 4 of 29 C/SCA/18106/2011 CAV JUDGMENT of the tenant, late Shri Ahmedkhan Pathan, made an application under Section 32P of the Tenancy Act on 16.8.1993 in which the Mamlatdar and ALT, Anand, passed an order fixing purchase price of the land in favour of the legal heirs of the tenant, late Shri Ahmedkhan Pathan, on 11.10.1993 in spite of the fact that earlier proceedings initiated under Section 32G of the Tenancy Act at the instance of late Shri Ahmedkhan Pathan, predecessorintitle of respondent No.3(1) to (3) attained finality. That , the Mamlatdar and ALT, Anand, passed two orders on 29.6.1964 under Section 70B of the Tenancy Act and by order dated 28.3.1965, in Case No.8/64/75 that late Shri Ahmedkhan Pathan was not tenant and by order dated 29.6.1964 the tenant should get a declaration under Section 70B of the Act and the proceedings were kept pending.
8 Both these orders are subject matter of challenge in Tenancy Appeal Nos. 150 and 83 of 1965 and by order dated 25.1.1966 the Deputy Collector, Anand, set aside both orders and directed the Mamlatdar to hold inquiry under Section 32G of the Tenancy Act.
9 By a statement recorded on 19.5.1966, the then tenant, late Shri Ahmedkhan Pathan, declared his inability and shown his unwillingness to purchase the subject land and by order dated 24.5.1966, the Mamlatdar and ALT, Anand, declared the sale as ineffective.
10 Against the aforesaid order of the Mamlatdar and ALT, Page 5 of 29 C/SCA/18106/2011 CAV JUDGMENT Anand, Tenancy Appeal No.215 of 1966 was filed by the legal representatives of late Shri Manubhai Shankerbhai, landlord, where, the Deputy Collector, Petlad, by order dated 5.1.1968, allowed the said appeal and set aside the orders passed by the Mamlatdar and ALT, Anand, and held that, as there was no 'sitting tenant' on the land in question on 1.4.1957, proceeding under Section 32G of the Tenancy Act came to be dropped. Thus, the petitioner, Sardar Patel University, purchased the subject land by a registered sale deed by paying legal and valid consideration.
11 Mr. A.J. Patel, learned counsel appearing for the petitioner, Sardar Patel University, in Special Civil Application No. 8141 of 2004, and respondent in Special Civil Application Nos.18106 of 2011 and 17409 of 2011, submits that order dated 5.1.1968 was passed by the Deputy Collector, Petlad, in Tenancy Appeal No.215 of 1966, whereby the order of the Mamlatdar and ALT, Anand, dated 24.5.1966 was quashed and set aside by holding that on 1.4.1957, 'the tillers' day', late Shri Ahmedkhan Pathan was not in possession of the subject land and the proceedings were declared as 'closed' and any subsequent action taken by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, belatedly after 23 years, is of no consequence, since the petitionerUniversity had already purchased the subject land on 9.1.1970 by a registered sale deed and the name of the University was mutated and certified in the revenue record. Therefore, the order passed by the Revenue Authority under Section 32P(2)[c] of the Tenancy Act holding the tenant in possession of the subject land on the tillers' day' and Page 6 of 29 C/SCA/18106/2011 CAV JUDGMENT fixing purchase price by order dated 11.10.1993 is illegal and contrary to the provisions of the Tenancy Act and subsequent appeal/revision filed by the legal heirs of the tenant cannot be said to be pending proceedings by or under the Act and, therefore, remand of the case by the impugned order dated 15.12.2003 by the Secretary, Revenue (Appeal) is also illegal and deserves to be quashed and set aside. Mr. A.J. Patel, learned counsel appearing for the petitionerUniversity, further submits that two writ petitions filed by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, deserve to be rejected as the Civil Court was within its jurisdiction to proceed with the Civil Suit filed by the University, being the plaintiff therein, for acceptance of its prayer for a declaration about legality and validity of its sale transaction and maintaining possession over the suit land. It is further submitted that the Civil Court has rightly rejected application Exh.134 filed by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, defendants therein, since the subject suit and the issues raised therein are to be adjudicated within the competency of the Civil Court in absence of any issue to be settled, decided or dealt with by the Revenue Authority under the Tenancy Act. It is further submitted that, at no point of time, the land came to be vested into the Government and, therefore, any application filed either under Section 32P or 32P(2) [c] of the Tenancy Act is of no consequence and no order could have been passed fixing purchase price and issuing a certificate of purchase in favour of the legal heirs of the tenant, late Shri Ahmedkhan Pathan. It is further submitted that the proceedings under Section 32P of the Tenancy Act have been initiated belatedly i.e. after lapse of 23 years from the date of purchase of the subject Page 7 of 29 C/SCA/18106/2011 CAV JUDGMENT land by the petitionerUniversity from its erstwhile owner. It is further submitted that, when it was held in the proceedings under Section 32G of the Tenancy Act that there was no sitting tenant on the subject land on the date of initiation of proceeding under Section 32G of the Tenancy Act, question of initiating proceedings under Section 32P of the Tenancy Act does not arise. It is further submitted that the petitionerUniversity had legitimately purchased the subject land from respondent Nos. 4 to 19 herein on 9.1.1970 and as such the University had become an absolute owner of the said land. Mr. A.J. Patel, learned counsel appearing for the petitionerUniversity, further submits that other proceedings taken up by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, and also by the landlord, without joining the petitioner University as a party, though the subject land was purchased from the landlord, would go to show that somehow the University is deprived of use of the subject land acquired for educational and cultural activities.
12 Mr. J.M. Patel, learned counsel for the legal heirs of the tenant and the petitioners in Special Civil Application No.18106 of 2011 and Special Civil Application No.17409 of 2011, submits that both the orders passed below Exh.134 and 140 in Special Civil Suit No.69 of 1994 are contrary to the provisions of Sections 85 and 85A of the Tenancy Act and deserve to be quashed and set aside. He has referred to Section 32 of the Tenancy Act and submitted that late Shri Ahmedkhan Pathan, father of the petitioners, became deemed purchaser by virtue of operation of Page 8 of 29 C/SCA/18106/2011 CAV JUDGMENT provision of Section 32 of the Tenancy Act. It is submitted that relationship of the landlord and the tenant was accepted, but, at the same time, on the tillers' day', i.e. 1.4.1957, the relationship ceased to exist between the landlord and the tenant. That, Special Civil Suit No.69 of 1994 was filed by the University, purchaser of the suit property by registered sale deed on 9.1.1970 in which Exh.5 application came to be rejected and the counter claim raised by the defendants and the petitioners herein and that a written statement was filed by the defendants in which it was categorically stated about the defendants being tenants by virtue of operation of the Tenancy Act and application Exh.15 preferred along with the counterclaim came to be rejected by granting statusquo by an order dated 5.5.1995 by the Civil Court. As against the above, Appeal From Order Nos. 282 and 283 of 1995 were preferred before this Court by the aggrieved plaintiffUniversity which came to be disposed of on 11.4.2000 by continuing the statusquo and directing the Civil Court to hear the suit expeditiously. A reference is made to page 78, Annexure "G", Entry No.940, recorded in village Form No.5 on 16.3.1953 which revealed that Shri Ahmedkhan Pathan as a tenant and page Nos. 82 to 83 village form No.7/12 revealed possession of Shri Ahmedkhan Pathan as tenant from 19501951 to 19651966. In suomotu proceedings initiated by the MamlatdarALT at page 84 and statement of tenant and landlord recorded on 3.3.1962 is about admission of the possession of the tenant who was willing to purchase the land and the land lord was not willing to sell the land. The tenant had stated about pendency of his application under Section 88C of the Tenancy Act for obtaining a certificate about his financial status. In the backdrop Page 9 of 29 C/SCA/18106/2011 CAV JUDGMENT of the above facts, application Exh.134 was preferred by the defendants wherein issue No.4 was raised about whether the father of the defendants had become deemed purchaser of the suit land as per the provisions of the Tenancy Act or not. The order rejecting such an application for reference to Mamlatdar by the Civil Court on 8.9.2011 is not only illegal but contrary to the judgment of the Apex Court. Mr. J.M. Patel, learned counsel appearing for the petitioners has placed reliance on Section 32 and Section 32(1)(B) of the Tenancy Act as introduced by Gujarat Amendment IV of 1973 with effect from 3.3.1973 a specified date and suomotu proceedings were initiated by the Mamlatdar under the above provisions though it is held that the tenants were not in possession of the land and since the land was sold by the landlord to the University by a registered sale deed, the tenants were not entitled to regain the land, the said finding in enquiry only establishes disentitlement of tenants by virtue of provisions of Section 31(1) (B), but, at the same time, the father of the petitioners, being a tenant, had already become a deemed purchaser on the tiller's day as per the provisions of Section 32 of the Tenancy Act. Mr. J.M. Patel, learned counsel appearing for the petitioners has also referred to the provisions of Section 85(A) along with Sections 85 (bar of jurisdiction) and 68 providing duties of the Tribunals and Section 70(a) about duties and functions of the Mamlatdar. A reference is also made to amendment to Section 32P(2)[c] and (a) I of the Tenancy Act and that declaration by the competent authority about possession of the petitioners, tenants, and purchase price was fixed.
Page 10 of 29 C/SCA/18106/2011 CAV JUDGMENT12.1 Certain facts, according to Mr. J.M. Patel, learned counsel appearing for the legal heirs of the tenant, late Shri Ahmedkhan Pathan, which are not brought on record by the University, are as under:
(i) Against the order dated 24.5.1966 passed by the Mamlatdar declaring that the purchase was ineffective as the tenant was not willing to purchase land, the University preferred Tenancy Appeal No.500 of 1994 after a period of about 28 years and the said Tenancy Appeal was withdrawn by the University.
(ii) Further, against the order dated 5.1.1968 passed by the Deputy Collector allowing the appeal preferred by the heirs of the original owner and holding that there was no tenant on the land as on 1.4.1957 and proceedings under Section 32G of the Tenancy Act was ordered to be closed, the petitioners (legal heirs of the tenant) preferred Revision Application before the Gujarat Revenue Tribunal being Revision Application No.436 of 1998 and the said Revision Application was admitted by the Tribunal on 4.12.2000 and is pending.
12.2 It is to be noted that Revision Application No.436 of 1998 was filed by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, after about 30 years challenging the order dated 5.1.1968 passed by the Deputy Collector.
12.3 Mr. J.M. Patel, learned counsel appearing for the petitioners Page 11 of 29 C/SCA/18106/2011 CAV JUDGMENT has relied upon the following decisions:
(i) Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade and another, reported in AIR 1983 SC 643 - that landlord's interest in the land gets extinguished on the tiller's day and simultaneously by statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant and that the landlord ceases to be the landlord and the tenant becomes the owner of the land and comes in direct contact with the State. Without any act or transfer inter vivios the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser.
(ii) Bhimaji Shankar Kulkarni vs. Dundappa Vithappa Udapudi and another, reported in AIR 1966 SC 166 - that the issue whether the defendant is a tenant must be referred to Mamlatdar for decision as required under Section 85A of the Bombay Tenancy and Agricultural Lands Act.
(iii) Shaikh Kasambhai Nurbhai v. Jenatbibi D/o. Husainali Niyajali Saiyad, reported in 1974 GLR 603, about the question whether the plaintiff has become the statutory owner is within the exclusive competence of the Tribunal.
(iv) Parmar Kanaksinh Bhagwansinh (dead) by Lrs. V. Makwana Shanabhai Bhikhabhai & another, reported in 1995 (1) GCD 562 (SC) - also for the proposition about interpretation of Sections 70 and 85A of the Act and determination of issue of pendency, it was held that the Civil Court could not determine the issue of pendency in a suit for declaration of retirement, as the issue of pendency is to Page 12 of 29 C/SCA/18106/2011 CAV JUDGMENT be decided by the competent authority under the Act.
13 In rejoinder, Mr. A.J. Patel, learned counsel appearing for the University, submitted on the basis of simple language of Section 85 of the Tenancy Act that the issue about tenancy was finally concluded and no such issue remained pending and, therefore, the order of the Civil Court not referring the case to the Mamlatdar was justifiable and in consonance with Section 85 as well as 85A of the Tenancy Act. Thus, on the basis of the orders dated 5.1.1968 and 26.8.1997, the order was passed by the Mamlatdar and ALT after the order of remand dated 5.8.1995 and the order under the suo motu enquiry held under Section 32(1B) of the Tenancy Act dated 25.4.1975 and in view of disentitlement of the tenant to receive the land back, it was urged that Special Civil Application No.8141 of 2004 is to be allowed and the other two writ petitions may be rejected.
14 Mr. R.A. Patel, learned counsel appearing for respondent No.3, the legal heirs of the tenant, late Shri Ahmedkhan Pathan, in Special Civil Application No. 8141 of 2004, has, by and large, adopted the arguments canvassed by Mr. J.M. Patel, learned counsel appearing for the legal heirs of the tenant, late Shri Ahmedkhan Pathan, in Special Civil Application Nos.18106 of 2011 and 17409 of 2011, challenging the orders passed below applications Exh.134 and 140 in Special Civil Suit No.69 of 1994. In addition thereto, Mr. R.A. Patel, learned counsel appearing for respondent No.3, has relied upon the affidavitinreply filed in Page 13 of 29 C/SCA/18106/2011 CAV JUDGMENT Special Civil Application No. 8141 of 2004 and statement of the then tenant, late Shri Ahmedkhan Pathan, and original landlord in Ganot Case No.8 of 1964 about possession of the tenant on the tillers' day'.
15 The relevant provisions of the Tenancy Act, namely, Sections 32, 32(1)(B), 32G, 32P(2)[c], 85 and 85A, are as under:
"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 of 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; and
(b) such tenant is not a permanent tenant but cultivates the 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 31st day of March 1957 under section 29 for obtaining possession of the land, or
(iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but 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 Gujarat Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have Page 14 of 29 C/SCA/18106/2011 CAV JUDGMENT 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':
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to subsection (3) of section 31 shall be deemed to have purchased the land on the 1 st day of April 1958 if no separation of his share has been effected before the date mentioned in that proviso.
1A(a)Where a tenant, on account of his eviction from the land by the landlord , before the 1st April 1957, is not in possession of the land on the said date but has made or makes an application for possession of the land under sub section (1) of section 29 within the period specified in that subsection, then if the application is allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the Gujarat Revenue Tribunal, he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed.
(b) Where such tenant has not made an application for possession within the period specified in subsection (1) of section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or as the case may be, on the date of the final rejection of the application.
(1B) Where a tenant who was in possession of land on the appointed day and who, on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in section 29 or any other provision of this Act, is not in possession of such and or any part thereof and such land or part thereof is in the possession of the landlord or his successorininterest on the said date and such land or part thereof is not put to a non agriculturaluse on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section 29 or any other provision of this Act either suo motu or on an application of Page 15 of 29 C/SCA/18106/2011 CAV JUDGMENT the tenant made within the prescribed period hold an inquiry and direct that such land or as the case may, part thereof shall be taken from the possession of the landlord or as the case may be, his successor in interest, and shall be restored, to the tenant; and thereafter, the provisions of this section and sections 32A to 32R (both inclusive) shall, so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on which such land or, as the case may be, part thereof is restored to him:
Provided that the tenant shall be entitled to restoration of land or part thereof, as the case may be, under this sub section only if he gives an undertaking in writing within such period as may be prescribed to cultivate it personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area: Provided further that
(i) if the tenant fails to give such undertaking within such prescribed period, or if the tenant, after giving such undertaking, refuses to accept the tenancy or possession of the lands, the land the possession of which the landlord or as the case may be, his successorininterest is not entitled to retain under this subsection; or
(ii) if the tenant gives such undertaking and accepts such tenancy or possession of the land, such portion of the land referred to in clause (i) to the restoration of which the tenant would not be entitled under the first proviso, shall vest in the State Government free from all encumbrances, and shall be disposed of in the manner provided in subsection (2) of section 32 P. Explanation: In this subsection 'successor in interest' means a person who acquires the interest by testamentary disposition or devolution on death.
32G. Tribunal to issue notice 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 Page 16 of 29 C/SCA/18106/2011 CAV JUDGMENT
(a) all tenants who under section 32 are deemed to have purchased the lands,
(b) all landlords of such lands, and [c] all other persons 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 not willing to purchase the land held by him as a 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 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 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 sub section (3) of section 63A:
Provided that where the purchase price in accordance with the provisions of section 32H is naturally agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenant's consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement.
(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 Page 17 of 29 C/SCA/18106/2011 CAV JUDGMENT land.
(6) If any land which, by or under the provisions of any of the 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."
32H. Purchase price and its maxima:
(1) Subject to the addition and deductions as provided in subsections (1A) and (1B), the purchase price shall be reckoned as follows namely: xx xx 32P Power of Collector to resume and dispose of land not purchased by tenant and appeal against Collector's order: (1) Where the purchase of any land by tenant under section 32 becomes ineffective under the foregoing provisions of the subchapter or where the tenant fails to exercise the right to purchase land under section 431D within the period specified in that section the Collector may suo motu or on an application made in this behalf and after holding a formal inquiry direct that the land shall be disposed of in the manner provided in subsection (2).
(2) Such direction shall, subject to the provisions of sub sections(2AA) and (2A), provide
(a) that the tenancy in respect of the land shall be terminated and the tenant be summarily evicted:
(b) deleted [c] that the entire land or such portion thereof, as the case may be, notwithstanding that it is a fragment, shall subject to the terms and conditions as may be specified in the direction be disposed of by sale to person in the following order of priority (hereinafter called 'the priority list') : and conditions as may be specified in the direction be disposed of by sale to person in the the following order of Page 18 of 29 C/SCA/18106/2011 CAV JUDGMENT priority (hereinafter called 'the priority list') : (ai) the tenant whose tenancy in respect of that land is terminated if such tenant is willing to accept the offer of sale, provided the occasion for the issue of such direction has not arisen by reason of an act of collusion between such tenant and the landlord.
(i) a cooperative farming society, the members of which are agricultural labourers, landless persons or small holders or a combination of such persons:
(ii) agricultural labourers; (iii) landless persons: (iv) small holders;
(v) a cooperative farming society of agriculturists (other than small holders) who hold either as owner or tenant or partly as owner and partly as tenant, land less in area than an economic holding and who are artisans:
(vi) an agriculturist (other than a small holder) who holds either as owner or tenant or partly owner and partly as tenant, land less in area than an economic holding and who is an artisan;
(vii) an other cooperative farming society;
(viii) any agriculturist who holds either as owner or tenant or partly as owner and partly as tenant land larger in area than an economic holding but less in area than the ceiling area;
(ix) any person not being an agriculturist, who intends to take to the profession of agriculture:"
85. Bar of jurisdiction: (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector, the Gujarat Revenue Tribunal or the State Government in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Gujarat Revenue Tribunal or the State Government made under this Act shall be questioned in any civil or Page 19 of 29 C/SCA/18106/2011 CAV JUDGMENT criminal court.
Explanation: For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906 (Bom.II of 1906).
85A. Suits involving issues required to be decided under this Act: (1) If any suit instituted, whether before or after the specified date, in any Civil Court involves any issues which are required to be settled, decided or dealt with any any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. (2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation: For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906 (Bom.II of 1906)."
16 It is relevant to note the events leading to proceeding under Section 32P(2)[c] of the Tenancy Act as under:
16.1 On 11.10.1993, the Mamlatdar in Case No.98 of 1993 was pleased to grant the land to the deceased tenant and fixed the purchase price. On 5.8.1995, against the aforesaid order, the University preferred Tenancy Appeal No.28 of 1994 before the State Government and the State Government, by its order dated 5.8.1995, was pleased to partly allow the appeal and set aside the order of the Mamlatdar and ALT dated 11.10.1993 and remanded Page 20 of 29 C/SCA/18106/2011 CAV JUDGMENT the matter back for fresh inquiry. On 26.8.1997, in view of the order passed by the State Government, the Mamlatdar, by his order dated 26.8.1997, dismissed the application of the tenant under Section 32P(2)[c] of the Tenancy Act. Against the said order, heirs of deceased tenant preferred Appeal No.8 of 1998 before the State Government and the State Government, by its order dated 15.12.2003, received by the University on 31.5.2004, was pleased to allow the appeal and remanded the case back to the Mamlatdar. The University preferred Special Civil Application No.8141 of 2004 before this Court which was admitted on 12.7.1004 and is pending for final disposal.
17 Examining the facts of the present case and considering the submissions made by learned counsels for the parties in the context of the statutory provisions under the Tenancy Act and in light of the principles propounded in the decisions relied upon by learned counsels appearing for both the parties, it appears that the tenant and the landlord have taken up various proceedings before the Revenue Authorities only with a view to deprive the Sardar Patel University usage of the land purchased by a registered sale deed as early as on 9.1.1970 upon fulfillment of all the requirements under the law. The predecessorintitle of legal heirs of the owners as well as tenants had no right, title or possession over the land and late Shri Ahmedkhan Pathan, a tenant, who claims to be a 'deemed purchaser' had, unequivocally, declared on 19.5.1966 before the Revenue Authority, namely, Mamlatdar & ALT, Anand, that he was not able and further not willing to purchase the subject land and, Page 21 of 29 C/SCA/18106/2011 CAV JUDGMENT therefore, by order dated 24.5.1966, the Mamlatdar & ALT, Anand, declared the sale as ineffective. By virtue of an order passed on 5.1.1968 by the Deputy Collector, Petlad, in Tenancy Appeal No.215 of 1966, it is held that there was no 'sitting tenant' on the land in question on 1.4.1957, i.e. 'the tillers' day' and the proceedings under Section 32G of the Tenancy Act were dropped.
18 Question of determining the purchase price or the sale becoming ineffective because the tenant was not willing to purchase the subject land would not arise. The subject land would be available for disposal under Section 32P of the Tenancy Act only if the condition precedent namely that the sale has become ineffective is satisfied. Since the tenant was not willing to purchase the subject land, question of proceeding further under section 32G of the Tenancy Act and declaring the same to be ineffective would not arise.
19 Even, in the collusive litigation undertaken by the tenant and the landlord, in which Sardar Patel University filed an application for being joined as a party, the proceedings were remanded, but, at the same time, in the application of preferred by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, in the second round, purchase price of the suit land was fixed and a certificate of purchase was issued under Section 32M of the Tenancy Act, which were not only null and void but without jurisdiction, since no land came to be vested into the Government and the Collector had no authority or jurisdiction to pass any order under Section 32P(2)[c] Page 22 of 29 C/SCA/18106/2011 CAV JUDGMENT of the Tenancy Act. Therefore, even the order of remand passed by the Secretary, Revenue (Appeal), State of Gujarat, dated 15.12.2003, received on 31.5.2004, impugned in Special Civil Application No.8141 of 2004 filed by the Sardar Patel University, remanding the matter to the Mamlatdar & ALT, Anand, is of no consequence and deserves to be quashed and set aside.
19.1 In view of the above, the contention of the learned counsel appearing for legal heirs of the tenant, late Shri Ahmedkhan Pathan, that interest of the landlord or any other person claimed through the landlord got extinguished and relationship between the tenant and the State Government came into existence, has no merit and is negatived.
20 Further, both the orders passed by the Civil Court below Exh.134 and 140 in Special Civil Suit No.69 of 1994 cannot be said to be violative or contrary to the provisions of Sections 85 and 85A of the Tenancy Act in as much as it was within the jurisdiction of the Civil Court to undertake a preliminary exercise about bonafide of the plea raised by the defendants in the suit, petitioners in Special Civil Application No.18106 of 2011 and Special Civil Application No.17409 of 2011, about their status as tenants warranting a reference to Mamlatdar, namely, competent authority. Upon overall consideration, even the Civil Court found that such dispute about tenancy raised by the defendants, legal heirs of the tenant, late Shri Ahmedkhan Pathan, had no merit and and is hit by a belated challenge to the order dated 5.1.1968 passed by the Page 23 of 29 C/SCA/18106/2011 CAV JUDGMENT Collector before the Gujarat Revenue Tribunal by way of filing Revision Application No.436 of 1998, after about 30 years, and pendency of such revision application before the Gujarat Revenue Tribunal, is nothing, but an after thought by legal heirs of the tenant, late Shri Ahmedkhan Pathan, who initially declined to purchase the subject land and the sale was held to be ineffective, to deprive the Sardar Patel University usage of the suit land. The fact that the said Revision Application is admitted by the Gujarat Revenue Tribunal would not preclude the Civil Court from proceeding with the suit and, therefore, the judgments relied upon by the learned counsel appearing for the legal heirs of the tenant, late Shri Ahmedkhan Pathan, are not applicable in the facts of the present case. It further appears that the original owner, though sold the subject land to the Sardar Patel University by a registered sale deed, had in collusion with the legal heirs of the tenant, late Shri Ahmedkhan Pathan, participated in the revenue proceedings and obtained the orders behind the back of the University from time to time belatedly to deprive the Sardar Patel University usage of the subject land. For all purposes, after the order dated 5.1.1968 passed by the Deputy Collector, Petlad, no right, whatsoever, existed in favour of the then tenant and later on the successors or legal heirs of such tenant since the owner sold the subject land to the Sardar Patel University as early as in 1970.
21 In absence of any right in favour of the legal heirs of the tenant, late Shri Ahmedkhan Pathan, as crystallized by any of the provisions under Sections 32 of the Act, the contention of Mr. J.M. Page 24 of 29 C/SCA/18106/2011 CAV JUDGMENT Patel, learned counsel appearing for the petitioners in Special Civil Application No.18106 of 2011 and Special Civil Application No.17409 of 2011, about the tenant became deemed purchaser on 'the tillers' day', has no substance and falls flat on the ground in view of the fact that the tenant had expressed his inability and unwillingness to purchase the subject land and, consequently, by virtue of an order passed on 5.1.1968 by the Deputy Collector, Petlad, in Tenancy Appeal No.215 of 1966, it is held that there was no 'sitting tenant' on the land in question on 1.4.1957, i.e. 'the tillers' day' and the proceedings under Section 32G of the Tenancy Act were dropped.
22 The contention of Mr. R.A. Patel, learned counsel appearing for the legal heirs of the tenant, late Shri Ahmedkhan Pathan, that there is suppression of material fact by the University has no merit in as much as, by order dated 6.9.2004, this Court [Coram: Jayant Patel, J.] had already observed that the materials which are referred to in the proceedings of the lower authority are already produced by the university in the petition and confirmed the ad interim relief as interim relief. Concurring and reiterating the same, in my view, the above contention of suppression of material fact is misconceived.
23 The judgment rendered by the Bombay High Court in the case of Shri S.A. Rahim vs. Shidu Laxman Ramoshi, reported in 1997 Bombay Law Reported 483, relied upon learned counsels appearing for both the parties, has persuasive value for the Page 25 of 29 C/SCA/18106/2011 CAV JUDGMENT proposition that the purchase can only be said to be ineffective in the case of a tenant who satisfies the conditions laid down under Section 32 of the Tenancy Act and shows his inability to purchase the land.
24 As regards the decisions in Amrit Bhikaji Kale (supra), Bhimaji Shankar Kulkarni (supra), Shaikh Kasambhai Nurbhai (supra), Parmar Kanaksinh Bhagwansinh (supra) and the proposition of law laid down therein about the interest of landlord on the land getting extinguished on 'the tillers' day' and the issue whether defendant is a tenant is to be referred to the Mamlatdar for decision as required under Section 85A of the Tenancy Act, there is no other different opinion, but, as held earlier, the facts of this case are different and, therefore, the above decisions are not helpful to the petitioners in Special Civil Application No.18106 of 2011 and Special Civil Application No.17409 of 2011.
25 To sum up:
(i) On 19.5.1966, late Shri Ahmedkhan Pathan, a tenant, who claimed to be a 'deemed purchaser' had, unequivocally, declared before the Revenue Authority, namely, Mamlatdar & ALT, Anand, that he was not able and further not willing to purchase the subject land. By order dated 24.5.1966, the Mamlatdar & ALT, Anand, declared the sale as ineffective. By virtue of an order passed on 5.1.1968 by the Deputy Collector, Petlad, in Tenancy Appeal No.215 of 1966, it is held that there was no 'sitting tenant' on the Page 26 of 29 C/SCA/18106/2011 CAV JUDGMENT land in question on 1.4.1957, i.e. 'the tillers' day' and the proceedings under Section 32G of the Tenancy Act were dropped.
When the proceedings are dropped on account of the fact that the person who is in possession of the land makes an unequivocal statement to the effect that he is not a tenant, such an order cannot be said to be a declaration that the purchase has become ineffective. That order is merely an order declaring that it is not necessary to continue any further with proceedings under section 32G of the Tenancy Act. In view of the above, no right flows as crystallized by Section 32 of the Act in favour of the legal heirs of the tenant, late Shri Ahmedkhan Pathan, and the then tenant did not become a deemed purchaser on 'the tillers' day'.
(ii) By a registered sale deed dated 9.1.1970 the Sardar Patel University purchased the subject land from the original owners, respondent Nos. 4 to 19, by paying a total consideration of Rs.45,000/ and, on the basis of the said sale deed, the subject land was mutated in the name of the University and it was certified in due course.
(iii) Order dated 11.10.1993 passed by the Mamlatdar & ALT, Anand, in Case No.98 of 1993, after about 24 years of order dated 5.1.1968 by the Deputy Collector, fixing purchase price of the suit land and issuing a certificate of purchase under Section 32M of the Tenancy Act is not only null and void but without jurisdiction, since no land came to be vested into the Government and the Collector had no authority or jurisdiction to pass any order under Section Page 27 of 29 C/SCA/18106/2011 CAV JUDGMENT 32P(2)[c] of the Tenancy Act. Question of determining the purchase price or the sale becoming ineffective because the tenant was not willing to purchase the subject land would not arise. The subject land would be available for disposal under Section 32P of the Tenancy Act only if the condition precedent, namely that the sale has become ineffective is satisfied. Since the tenant was not willing to purchase the subject land, question of proceeding further under section 32G of the Tenancy Act and declaring the same to be ineffective would not arise. Therefore, even the order of remand passed by the Secretary, Revenue (Appeal), State of Gujarat, dated 15.12.2003/31.5.2004, impugned in Special Civil Application No.8141 of 2004 filed by the Sardar Patel University, remanding the matter to the Mamlatdar & ALT, Anand, which is passed in the concluded proceeding, is of no consequence and deserves to be quashed and set aside.
(iv) The Civil Court found that such dispute about tenancy raised by the defendants, legal heirs of the tenant, late Shri Ahmedkhan Pathan, had no merit and is hit by a belated challenge to the order dated 5.1.1968 passed by the Collector before the Gujarat Revenue Tribunal by way of filing Revision Application No.436 of 1998, after about 30 years, and filing of such revision application before the Gujarat Revenue Tribunal, is nothing, but an after thought by legal heirs of the tenant, late Shri Ahmedkhan Pathan, who initially declined to purchase the subject land, to deprive the Sardar Patel University usage of the suit land. The fact that the said Revision Application is admitted by the Gujarat Revenue Tribunal would not preclude the Civil Court from proceeding with the suit. Sections Page 28 of 29 C/SCA/18106/2011 CAV JUDGMENT 85 and 85A of the Tenancy Act cannot be pressed into service in the facts of the present case in as much as it was within the jurisdiction of the Civil Court to undertake a preliminary exercise about bonafide of the plea raised by the defendants in the suit about their status as tenants warranting a reference to Mamlatdar.
26 In the result, Special Civil Application No. 8141 of 2004 filed by Sardar Patel University is allowed in terms of prayer made in paragraph 22(A). Rule is made absolute. There shall be no order as to costs.
27. Special Civil Application Nos.18106 of 2011 and 17409 of 2011 filed by the legal heirs of the tenant, late Shri Ahmedkhan Pathan, are rejected. Notice is discharged. There shall be no order as to costs.
(ANANT S.DAVE, J.) SWAMY Page 29 of 29