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1993 DIGILAW 424 (GUJ)

PATEL GORDHANBHAI HIRABHAI v. THAKOR AMBALAL desaibhai

1993-09-10

A.N.DIVECHA

body1993
DIVECHA, J. ( 1 ) THE order passed by the Dy. Collector of Petlad on 20th september, 1982 in Tenancy Appeal No. 119 of 1982 as affirmed in revision by the decision of the Gujarat Revenue Tribunal rendered on 5/11/1984 in Revision Application No. TEN. B. A. 1882 of 1982 is under challenge in this petition under Art. 227 of the Constitution of India. ( 2 ) THIS litigation has a chequered history. The dispute centres round one dwelling house belonging to respondent No. 1 situated in the land bearing survey No. 202/2 admeasuring 38 Gunthas and Survey No. 203/ 10+11 admeasuring 14 Gunthas situated in village Vasana, Taluka Borsad, District kheda (the disputed land for convenience ). Respondent No. 1 herein was its tenant. His tenancy came to be terminated for non-payment of rent. The petitioner-landlord thereafter instituted the proceedings for eviction of respondent no. 1-tenant under Secs. 14, 25 (2) and 29 of the Bombay Tenancy and agricultural Lands Act, 1948 (the Act for brief ). It came to be registered as tenancy Case No. 44 of 1964 in the Court of the Mamlatdar and Agricultural lands Tribunal. Those proceedings terminated in favour of respondent No. 1- tenant. The petitioner-landlord carried the matter in appeal before the Dy. Collector at Petlad. It came to be registered as T. A. No. 103 of 1966. By his order passed on 1/05/1968, the Dy. Collector of Petlad accepted the petitioner-landlords appeal and ordered eviction of respondent No. 1-tenant from the disputed land. The aggrieved tenant carried the matter in revision before the Gujarat Revenue Tribunal but failed. He thereupon moved this court by invoking its extraordinary jurisdiction presumably under Art. 227 of the Constitution of India. His writ petition came to be registered as special Civil Application No. 433 of 1969. By its judgment passed on 17/ 18/03/1972, his writ petition came to be rejected. Thereafter on application of the petitioner-landlord, he was put in possession of the disputed land by the Mamlatdar on 28/06/1972. At that time a hutlike structure was found in the disputed land. It is not in dispute that it was raised thereon by respondent No. 1-tenant at his own expenses. The petitioner-landlord thereupon moved the Mamlatdar to hand over possession of the site on which the hutlike superstructure was found standing by ordering its removal. The Mamlatdar passed the necessary order on 28/07/1972. It is not in dispute that it was raised thereon by respondent No. 1-tenant at his own expenses. The petitioner-landlord thereupon moved the Mamlatdar to hand over possession of the site on which the hutlike superstructure was found standing by ordering its removal. The Mamlatdar passed the necessary order on 28/07/1972. Respondent No 1-tenant thereupon carried the matter in appeal before the Dy. Collector at Petlad. His appeal came to be registered as Tenancy Appeal No. 120 of 1972. By his order passed on 14/08/1972, the Dy. Collector dismissed the appeal. The aggrieved tenant thereupon invoked the revisional jurisdiction of the Gujarat revenue Tribunal at Ahmedabad. Its revisional application came to be registered as Revision Application No. TEN. B. A. 391 of 1972. By his decision rendered in the aforesaid revisional application, the Gujarat Revenue tribunal at Ahmedabad partly accepted the revisional application and directed the lower authority to determine the compensation in respect of the structure in question under Sec. 41 of the Act to be paid to respondent No. 1-tenant therefor. Thereupon the proceedings were initiated for determining the compensation under Sec. 41 of the Act. Respondent no. 1-tenant made an application for the purpose. It came to be registered as application No. 2 of 1972. By his order passed on 2 5/11/1974, the Mamlatdar rejected it. It was affirmed in appeal by the Dy. Collector by his order passed on 3rd September, 1975. Respondent no. 1-tenant thereupon was obliged to invoke unsuccessfully the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad. It came to be registered as Revision Application No. 134 of 1976. By its decision rendered on 31/03/1976, the Gujarat Revenue Tribunal rejected the said revisional application as time-barred. Respondent No. 1-tenant thereupon invoked the extraordinary jurisdiction of this Court by means of his writ petition presumably under Art. 227 of the Constitution of India. It came to be registered as Special Civil Application No. 864 of 1976. This court accepted the writ petition and remanded the matter to the gujarat Revenue Tribunal to decide the revisional application in question on its own merits. After remand, it came to be registered as ten. B. A. 984 of 1979 in the Gujarat Revenue Tribunal at Ahmedabad. It came to be registered as Special Civil Application No. 864 of 1976. This court accepted the writ petition and remanded the matter to the gujarat Revenue Tribunal to decide the revisional application in question on its own merits. After remand, it came to be registered as ten. B. A. 984 of 1979 in the Gujarat Revenue Tribunal at Ahmedabad. At the time of its hearing, respondent No. 1-tenant sought amendment in his original application No. 2 of 1972 filed before the Mamlatdar praying for a relief under Sec. 16 read with Sec. 17b of the Act alleging that he had become the deemed purchaser of the portion of the disputed land on which bis aforesaid structure was standing. By its order passed on 13/10/1980, the Gujarat Revenue Tribunal at Ahmedabad accepted the amendment application and the matter was sent back to the mamlatdar for deciding the case under Sec. 16 read with Sec. 17b of the act. After remand, the Mamlatdar registered the case as Tenancy Case No. 2 of 1980 (Remand ). After holding inquiry, by his order passed on 2/06/1982, the Mamlatdar rejected the application made by respondent No. 1-tenant for purchase of the site on which the structure in question was standing. A copy of the order passed by the Mamlatdar on 2/06/1982 is at Annexure "a" to this petition. Respondent No. 1-tenant carried the matter in appeal before the Dy. Collector at Petlad. His appeal came to be registered as Tenancy Appeal No. 119 of 1982. By his order passed on 20th september, 1982, the Dy. Collector accepted the appeal and set aside the order passed by the Mamlatdar at Annexure "a" to this petition. The appellate authority held that the respondent was entitled to purchase the site on which his dwelling house was standing as also the land appurtenant thereto under Secs. 16 and 17b of the Act. A copy of the appellate order is at Annexure "b" to this petition. The petitioner-landlord thereupon invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad. His revisional application came to be registered as Revision Application No. TEN B. A. 1882 of 1982. By its decision rendered on 5/11/1984, the Gujarat Revenue Tribunal at Ahmedabad rejected it. A copy of its decision is at Annexure "c" to this petition. The petitioner-landlord thereupon invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmedabad. His revisional application came to be registered as Revision Application No. TEN B. A. 1882 of 1982. By its decision rendered on 5/11/1984, the Gujarat Revenue Tribunal at Ahmedabad rejected it. A copy of its decision is at Annexure "c" to this petition. The petitioner-landlord has thereupon invoked the extraordinary jurisdiction of this Court under Art. 227 of the Constitution of India for questioning the legality and validity of the order passed by the Dy. Collector at Annexure "b" to this petition as affirmed in revision by the decision of the Gujarat Revenue Tribunal at ahmedabad at Annexure "c" to this petition. ( 3 ) SHRI Jadeja for the petitioner has urged that the impugned order at annexure-B as affirmed by the decision at Annexure c to this petition cannot be upheld in law for three very good reasons. In the first place, runs the submission of Shri Jadeja for the petitioner. Secs. 16 and 17-B of the Act would not govern the present case as respondent No. 1-tenant came to be evicted from the agricultural land way back in 1972 before the specified date. Secondly, according to Shri Jadeja for the petitioner, Sec. 16 of the Act would be applicable to a dwelling house and not a hut, erected by the tenant on a site belonging to the landlord situated in a village and not on the agricultural land. Besides, runs the submission of Shri Jadeja for the petitioner, the Scheme of Sec. 16 of the Act does not envisage construction of a dwelling house on an agricultural land outside the village site though within its revenue limits. As against this, Shri J. M. Patel for respondent No. 1 has urged that the impugned order at Annexure b to this petition as affirmed in revision by the impugned decision at Annexure c to this petition is quite just and legal and calls for no interference by this Court in this petition under Art. 227 of the Constitution of India. According to Shri Patel for respondent No. 1, the Scheme of Secs. According to Shri Patel for respondent No. 1, the Scheme of Secs. 16 and 17-B of the Act is designed to protect the tenant from his eviction from the dwelling house (which could be his hut) erected by him on the land taken on lease by him from the landlord and to make him the deemed purchaser thereof if he was in its occupation on the specified date in view of Sec. 17-B thereof. ( 4 ) IN order to appreciate the submissions urged before me by Shri Jadeja for the petitioner, it would be quite proper to look at the relevant provisions contained in Secs. 16 and 17-B (1) of the Act. They read :"16. (1) If in any village a tenant is in occupation of a dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house (with the materials and the site thereof and the land immediately appurtenant thereto and necessary for its enjoyment) unless - (a) the landlord proves that the dwelling house was not built at the expense of such tenant or his predecessor-in-title, and (b) such tenant makes any three defaults in the payment of rent, if any, which he has been paying for the use and occupation of such site. (2) The provisions of sub-sec. (1) shall not apply to a dwelling house which is situated on any land used for the purposes of agriculture from which he has been evicted under sec. 31. ""17-B (1) On and with effect from such date as the State Government may, by notification in the Official Gazette, specify, every tenant referred to in Sec. 16 shall be deemed to have purchased from his landlord the site on which the dwelling house occupied by such tenant, was built, and the land immediately appurtenant thereto and necessary for enjoyment of the dwelling house free from all encumbrances, at the price to be fixed by the Tribunal, being a price not exceeding twenty times the annual rent for the site. "a bare perusal of Sec. 16 of the Act would show that no tenant can be evicted from any dwelling house (with the materials and the site thereof and the land immediately appurtenant thereto and necessary for its enjoyment) if it is built by him at his own expense on a site belonging to his landlord in any village. In order to deny such protection to the tenant, the landlord is required to prove not only that the dwelling house in question was not built at the expense of such tenant or his predecessor-in-title but also that such tenant has made any three defaults in the payment of rent, if any, which he has been paying for the use and occupation of such site. It has been provided in sub-sec. (2) thereof that sub-sec. (1) thereof shall not apply to a dwelling house which is situated on any land used for the purpose of agriculture from which he has been evicted under Sec. 31 thereof. ( 5 ) IT is an admitted position on record that the structure standing on the disputed land is a dwelling house of respondent No. 1-tenant. The petitioner-landlord might style it to be a chhapra or a hut. It, however, does not cease to be a dwelling house for respondent No. 1-tenant. The term "dwelling house" has not been defined in the Act. This term is not found defined either in the Bombay Land Revenue Code, 1879 or the Transfer of Property Act, 1882; else its meaning could have been ascertained therefrom in view of Sec. 2 (21) of the Act. It does not appear to have been defined in the Bombay General Clauses Act, 1904. It is a settled principle of law that, when a term occurring in a statutory provision is not defined in the statute, its meaning will have to be ascertained from a dictionary. ( 6 ) IN the Concise Oxford Dictionary of Current English published by oxford University Press (Eighth Edition 1990, Third Impression 1992), the term "dwelling house" is defined to mean "a house used as a residence, not as an office etc. " The word "hut" is defined in the very same dictionary to mean "a small simple or crude house or shelter". The word "house" has been defined in the same dictionary inter alia to mean "a building for human habitation". " The word "hut" is defined in the very same dictionary to mean "a small simple or crude house or shelter". The word "house" has been defined in the same dictionary inter alia to mean "a building for human habitation". It thus becomes clear from the dictionary meaning of the word "hut" that it is a place for human residence. It will definitely answer the definition of a "dwelling house". It is not in dispute that respondent no. 1-tenant has been residing in the structure raised by him on the disputed land. In that view of the matter, it cannot be gainsaid that the structure standing on the disputed land belonging to respondent No. 1-tenant was his dwelling house. It was admittedly built at the expenses of respondent No. 1-tenant. In that view of the matter, the landlord would not be entitled to evict the tenant from his dwelling house erected by him on the disputed land taken on lease from his landlord in view of Sec. 16 (1) of the Act. It is true that Respondent No. 1 - tenant was evicted from the disputed land in the proceedings under Secs. 14, 25 (2) and 29 of the Act. He was certainly not evicted under Sec. 31 thereof. In that view of the matter, sub-sec. (2) of Sec. 16 thereof would not be helpful to the petitioner-landlord in the present case as submitted by Shri Jadeja for the petitioner. The necessary condition against applicability of sub-sec. (1) of sec, 16 thereof is that the tenant is evicted from the agricultural land under sec. 31 thereof. The tenant was admittedly not evicted thereunder. In that view of the matter, there is no escape from the conclusion that respondent no. 1-tenant has not lost protection of Sec. 16 of the Act simply on the ground that he was evicted from the land under Sec. 29 read with Secs. 14 and 25 (2) thereof. ( 7 ) THE condition for applicability of Sec. 16 is erection of a dwelling house by the tenant at his own expense on a site belonging to his landlord situated in a village. Shri Jadeja for the petitioner has urged that a site referred to in Sec. 16 (1) of the Act would connote the residential site in the village area and not in any agricultural land. The word "site" is not defined in the act. Shri Jadeja for the petitioner has urged that a site referred to in Sec. 16 (1) of the Act would connote the residential site in the village area and not in any agricultural land. The word "site" is not defined in the act. It is defined neither in the Bombay Land Revenue Code, 1879 nor in the Transfer of Property Act, 1882. The meaning of that word does not figure in the Bombay General Clauses Act, 1904 as well. It is defined in the aforesaid dictionary inter alia to mean "the ground chosen or used for a town or building". It thus becomes clear that the word "site" would connote a portion of land chosen or used inter alia for a building. The word "building" according to its dictionary meaning would include a "hut" or "chhapra". It is defined in the aforesaid dictionary to mean "a permanent fixed structure forming an enclosure and providing protection from the elements etc. (e. g. a house, school, factory or stable (emphasis supplied ). In that view of the matter. a portion of land chosen from the agricultural land taken on lease by the tenant for erecting his dwelling house would also be a site for the purposes of Sec. 16 (1) of the Act. ( 8 ) THE word "village" has been defined in Sec. 2 (20) of the Act to mean "a village recognised as such in the revenue accounts". It cannot be gainsaid that village Vasana in which the disputed land is situated is a recognised village within the meaning of Sec. 2 (20) of the Act. It is again not in dispute that the disputed land is situated within the revenue limits of village Vasana. In view of the aforesaid meanings of the words "site" and "village", there is no escape from the conclusion that a dwelling house erected by the tenant could be on an agricultural land taken on lease from his landlord and not necessarily in the village site or what is popularly known as gamthal. I am, therefore, of the opinion that a tenant would be entitled to protection from his eviction from a dwelling house used by him on any piece of agricultural land taken on lease by him from his landlord by virtue of Sec. 16 of the act. I am, therefore, of the opinion that a tenant would be entitled to protection from his eviction from a dwelling house used by him on any piece of agricultural land taken on lease by him from his landlord by virtue of Sec. 16 of the act. ( 9 ) IN view of my aforesaid discussion, I have found no force or substance in any of the arguments urged before me by Shri Jadeja for the petitioner. The impugned order at Annexure "b" to this petition as affirmed by the decision at Annexure "c" to this petition, therefore, deserves to be affirmed. ( 10 ) ). In the result, the petitioner fails. This petition of his is rejected. Rule is accordingly discharged, however, with no order as to costs on the facts and in the circumstances of the case. .