RAOJIBHAI MOTIBHAT v. SHANTABEN KALIDAS CHAUHAN — 1991 DIGILAW 353 (GUJ)

BHATT, J. ( 1 ) LEAVE to amend. In these two petitions, under Art. 227 of the Constitution of India, common questions are involved and both these petitions are directed against the common judgment and order passed by the Gujarat Revenue Tribunal, in Revision applications Nos. 556 of 1982 and 557 of 1982, on 26-8-1985. Therefore, with the consent of the learned Counsels appearing for the parties, both these petitions are disposed of by this common judgment. For the sake of convenience, special Civil Application No. 6149 of 1985 is hereinafter referred to as the "first petition" and Special Civil Application No. 6163 of 1985 is hereinafter referred to the "second petition". ( 2 ) IN order to appreciate the merits of these two petitions, it would be necessary to refer to the relevant facts giving rise to the present petitions. ( 3 ) RESPONDENT No. 2 in the first petition, Chandrashanker Pursottam Joshi, was the original owner of an agricultural property bearing Revenue Survey no. 621/1 (paiki), admeasuring 0. 243/4 Gunthas situated in the town of Anand. Respondents Nos. 2, 3 and 4, Bhagwatprasad Umiyashanker Joshi, Vasudev umiyashanker Joshi and Smt. Savitaben, widow of Umiyashanker Joshi, were the owners in respect of the agricultural property bearing Revenue Survey no. 614/2 admeasuring 0. 27 Gs. and a part of Revenue Survey No. 620/ 1, admeasuring 0. 221/2 Gs. , situated in the town of Anand. The above properties are hereinafter referred to as the disputed lands for the sake of convenience. One deceased Mathurbhai Nathubhai was recorded as the tenant in respect of the disputed lands, who died, on 2-8-1970. ( 4 ) IT is noticed from the record that Mamlatdar had started suo motu inquiry under Sec. 32g of the "bombay Tenancy and Agricultural lands Act", 1948 ("bombay Tenancy Act" for short, hereinafter) in respect of the disputed lands, in the year 1971. After hearing the parties, the Mamlatdar was pleased to six the purchase price in respect of the disputed lands and he found respondent No. 1, Chhotabhai mathurbhai, one of the sons of the deceased Mathurbhai Nathubhai, as a tenant in respect of the disputed lands. The Number of Case was Tenancy case No. 32-G Anand 32-U-1154/1, in respect of the disputed lands bearing revenue Survey No. 620/1, admeasuring 0,24 3/4 Gs. The Number of Case was Tenancy case No. 32-G Anand 32-U-1154/1, in respect of the disputed lands bearing revenue Survey No. 620/1, admeasuring 0,24 3/4 Gs. and Case No. 1154/ 2 in respect of the disputed lands bearing Revenue Survey No. 614/2, admeasuring 0. 27 Gs. and S. No. 620/1, admeasuring 0. 22 1/2 Gs. ( 5 ) BEING aggrieved by the decision of the Mamlatdar, the present petitioner, raojibhai preferred two appeals, being Appeal Nos. 74 of 1981 and 75 of 1981. On hearing the parties, the Deputy Collector, at Anand, was pleased to allow the appeals. The orders of the Mamlatdar were quashed. Both the matters were remanded to the Mamlatdar and Agricultural Lands Tribunal ("mamlatdar and A. L. T. " for short hereinafter), Anand, to decide both the matters afresh, after hearing all the concerned parties. ( 6 ) BEING aggrieved by the order of the Deputy Collector, respondent No. 1 in both the petitions, Chhotabhai, preferred two Revision Applications bearing nos. Tenancy B. A. 556 and 557 of 1982 before the Gujarat Revenue Tribunal. After hearing the parties, the Bench of the Gujarat Revenue Tribunal was pleased to set aside the decision of the Deputy Collector, passed in Appeals nos. 74 and 75 of 1981. As a result, both the Revision Applications were allowed and the orders of the Mamlatdar and A. L. T. , dated 5-11-1971 and 30-11-1971 were restored. ( 7 ) BEING aggrieved by the said common judgment and order of the Gujarat revenue Tribunal, the petitioner, Raojibhai, has filed both these petitions challenging the legality and validity of the said judgment and order of the gujarat Revenue Tribunal, under the provisions of Art. 227 of the Constitution of India. ( 8 ) HAVING examined the facts and circumstances of the present case and the relevant provisions of the Bombay Tenancy Act, this Court is of the opinion that the impugned judgment and order of the Gujarat Revenue Tribunal, dated 26-8-1985, in Tenancy Revision Applications Nos. 556 and 557 of 1982, arc not only erroneous but illegal. It appears that the Tribunal took an erroneous view and held that the provisions of Sec. 40 (1) of the Bombay Tenancy act were applicable. 556 and 557 of 1982, arc not only erroneous but illegal. It appears that the Tribunal took an erroneous view and held that the provisions of Sec. 40 (1) of the Bombay Tenancy act were applicable. In fact, it is not in controversy that the deceased mathurbhai Nathubhai, who was a tenant in respect of the disputed lands, had become a deemed purchaser, on 13-12-1960, in view of the amendment made in Secs. 43c and 43d, in 1960, in Chapter III-B of the Bombay tenancy Act. By virtue of the amendment made in 1960, the provisions of secs. 43c and 43d came to be deleted, on 13-12-1960. ( 9 ) IT would be, therefore, necessary to refer to the provisions of Sec. 43c. It provides that certain provisions of the Bombay Tenancy Act shall not apply to Municipal or Cantonment areas in so far as the provisions of Secs. 32 to 32r (both inclusive) and Sec. 43 are concerned. However, on 13-12-1960, the State Legislature made the amendment. By virtue of the Amendment Act of Gujarat No. 16 of 1960, Clauses 43c and 43d of the Bombay Tenancy Act came to be deleted. As a result of it, the provisions of Secs. 32 to 32r and 43 came to be applied to the disputed lands, which are situated in the municipal area of Anand Town. There is no dispute about the fact that the disputed lands are situated within the municipal limits of Anand Municipality. After the amendment came into force with effect from 13-12-1960, the provisions of Sec. 32 became applicable to the disputed lands, situated in the municipal area of Anand municipality. ( 10 ) UNDER Sec. 32 (1) of the Bombay Tenancy Act, a provision is made whereby the tenants of agricultural lands are deemed to have purchased the lands, on Tillers Day. In so far as the disputed lands are concerned, the tillers Day would be 13-12-1960, the day on which the amendment came to be made in the Bombay Tenancy Act and it is not in dispute that, on 13-12-1960, the deceased Mathurbhai Nathubhai, who was a tenant, became the deemed purchaser by virtue of Sec. 32, read with Sec. 43c of the Bombay tenancy Act. ( 11 ) IT appears that attention of the Tribunal was not drawn to the aforesaid amendment in the Bombay Tenancy Act made in 1960. ( 11 ) IT appears that attention of the Tribunal was not drawn to the aforesaid amendment in the Bombay Tenancy Act made in 1960. There was no question of deciding the rights amongst the heirs of the deceased-Tenant before the tribunal in view of the aforesaid amendment. Deceased Mathurbhai Nathubhai became the deemed purchaser on the Tillers Day applicable to the disputed lands, i. e. , 13-12-1960. Therefore, in the opinion of this Court, the decision of the Gujarat Revenue Tribunal under challenge is suffering from the vices of illegality, which is required to be corrected in these petitions under Art. 227 of the Constitution of India. ( 12 ) NO doubt, the jurisdictional sweep of this Court under Art. 227 of the Constitution of India is very much circumscribed. However, if any illegality or misreading of evidence or perversity is noticed, then such vices are required to be corrected by this Court under Art. 227 of the Constitution of India. This is one of the fittest case, wherein, illegality committed in the decisions of the Gujarat Revenue Tribunal are required to be corrected by interfering with the impugned orders. ( 13 ) NOW, the question would arise as to what appropriate relief should be granted in the present petitions. The Gujarat Revenue Tribunal committed illegality in quashing the orders in appeal passed by the Deputy Collector, restoring the orders of the Mamlatdar and A. L. T. Since the impugned judgment and orders are found illegal, they are required to be quashed. Once they are quashed, the orders of the Deputy Collector will stand restored. It is a common contention of the learned Counsels for the parties that in the facts of the present case, the impugned orders of the Deputy collector passed in those appeals are required to be slightly modified. At this stage, it may be mentioned that it is a common contention in these two petitions that the deceased Mathurbhai Nathubhai, who died on 2-8- 1970, had left the following five sons and a daughter : (1) Mangalbhai, (2) Chhotabhai, (3) Motibhai, (4) Shankerbhai and (5) Lallubhai and daughter Jibaben. At this stage, it may be mentioned that it is a common contention in these two petitions that the deceased Mathurbhai Nathubhai, who died on 2-8- 1970, had left the following five sons and a daughter : (1) Mangalbhai, (2) Chhotabhai, (3) Motibhai, (4) Shankerbhai and (5) Lallubhai and daughter Jibaben. There is no dispute about the fact that the mamlatdar and A. L. T. had not issued notices to the heirs of the deceased Mathurbhai Nathubhai, who became the deemed purchaser, on 13-12-1960, and who was, admittedly, ready and willing to purchase the disputed lands as per the provisions of Sec. 32 of the Bombay Tenancy act made applicable by virtue of the amendment made in 1960. Therefore, the Mamlatdar and A. L. T. ought to have issued notices to all the heirs of deceased Mathurbhai Nathubhai, the deemed purchaser, while passing orders, on 5-11-1971 and 30-11-1971. The Mamlatdar and A. L. T. was pleased to pass an order to issue certificate in the name of one son of the deceased Mathurbhai nathubhai, i. e. , Chhotabhai, who is respondent No. 1 in both these petitions. The error of fact and illegality committed by the Mamlatdar and A. L. T. was corrected by the Deputy Collector in Appeals. However, as observed hereinbefore, in Revision Applications before the Gujarat Revenue Tribunal, the Tribunal was pleased to restore the illegal and erroneous orders passed under Secs. 32g to 32 H of the Bombay Tenancy Act. ( 14 ) SECTION 32m (1) of the Bombay Tenancy Act provides that the competent authority shall issue the certificate of purchase in the prescribed form, to the tenant in respect of the land, who has become the deemed purchaser. Such certificate shall be conclusive evidence of purchase. The Mamlatdar and a. L. T. was pleased to issue such a certificate under Sec. 32m only in favour of one Chhotabhai Mathurbhai, respondent No. 1, one of the sons of the deceased Mathurbhai Nathubhai, the deemed purchaser. It is not disputed that the purchase certificate came to be issued in the name of said Chhotabhai mathurbhai pursuant to the orders of the Mamlatdar. The certificate is issued on payment of Rs. 962. 00 in respect of the disputed land bearing Revenue survey No. 620/1, admeasuring 0. 24 3/4 Gs. , for Rs. 2699. 15 in respect of the disputed land bearing Revenue Survey No. 620/1, admeasuring 0. The certificate is issued on payment of Rs. 962. 00 in respect of the disputed land bearing Revenue survey No. 620/1, admeasuring 0. 24 3/4 Gs. , for Rs. 2699. 15 in respect of the disputed land bearing Revenue Survey No. 620/1, admeasuring 0. 22. 5 gs. , and for Rs. 2424. 15 in respect of the disputed land bearing Revenue survey No. 614/2, admeasuring 0. 27 Gs. , pursuant to the orders of the mamlatdar and A. L. T. in the name of Chhotabhai Mathurbhai, who is respondent no. 1 in both the petitions. ( 15 ) IN fact, the certificate issued under Sec. 32m of the Bombay Tenancy act in respect of the disputed lands ought to have been issued in the names of all the heirs of the deceased, deemed purchaser-Mathurbhai Nathubhai, after giving notices to all the heirs of the deceased Mathurbhai Nathubhai and after holding inquiry in that behalf only. Instead of, the certificate came to be issued only in the name of one son only. In these circumstances, it is necessary to direct the Mamlatdar and A. L. T. , at Anand, to issue fresh purchase certificate under Sec. 32m of the Bombay Tenancy Act in the names of all the heirs of the deceased deemed purchaser, Mathurbhai Nathubhai, in accordance with law, after hearing the heirs of the deceased deemed purchaser. The order of issuance of purchase certificate in the name of one person only, who is respondent No. 1 in both the petitions, i. e. , Chhotabhai Mathurbhai shall stand quashed. ( 16 ) IN the net result, the Mamlatdar and A. L. T. , at Anand, is hereby directed to issue necessary purchase certificate under Sec. 32m of the bombay Tenancy Act in the names of all the legal heirs and representatives of the deceased deemed purchaser, Mathurbhai Nathubhai, after holding proper inquiry in that behalf only. Since the question of purchase price is already decided and not disputed, now it is not required to be reconsidered. Since the question of purchase price is already decided and not disputed, now it is not required to be reconsidered. It may be clarified that for the limited purpose of issuance of certificate under Sec. 32m of the Bombay Tenancy Act in the names of the legal heirs and representatives of the deceased deemed purchaser, Mathurbhai nathubhai, the Mamlatdar and A. L. T. , at Anand, is directed to hear the heirs and legal representatives of the deceased deemed purchaser, Mathurbhai nathubhai, and take appropriate action for the issuance of purchase certificate. ( 17 ) IT may also be mentioned that learned Counsels appearing for the heirs of the deceased deemed purchaser, Mathurbhai Nathubhai have, frankly and fairly, stated at the bar that they are ready and willing to pay prorata amount of the purchase price which is already determined by the Mamlatdar and A. L. T. to respondent No. 1, Chhotabhai Mathurbhai, in the event of grant of fresh purchase certificate in their names along-with Chhotabhai Mathurbhai. ( 18 ) IN view of the aforesaid observations and directions, both petitions are required to be allowed. Consequently, both petitions stand allowed. Rule is made absolute in both petitions with no order as to costs. ( 19 ) BEFORE parting, it may be mentioned that the dispute between the parties is more than two decades old. It will be, therefore, necessary to direct the Mamlatdar and A. L. T. concerned to see that top priority is accorded to the present matters as soon as the matters are received back with writ of this Court. However, he shall dispose of both the cases not later than 31- 12-1991. .