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1993 DIGILAW 481 (GUJ)

HATHISINH MADHAVSINH v. AMARSINH PARVATSINH

1993-10-07

A.N.DIVECHA

body1993
A. N. DIVECHA, J. ( 1 ) IS the law designed to help people or to harass them more particularly when ignorant people are involved? Is it not the duty of the law enforcing machinery to bring to their notice the intricacies of law ? These questions mainly come to the forefront in this petition under Article 227 of the Constitution of India challenging the legality and validity of the order passed by the Mamlatdar and Agricultural Lands Tribunal at Dabhoi (the first authority for convenience) on 23/02/1981 in Tenancy Case No. 2506 of 1981 as affirmed in appeal by the Dy. Collector at Dabhoi by his order passed on 28/09/1981 in Tenancy Appeal No. 19 of 1981 as further affirmed in revision by the Gujarat Revenue Tribunal at Ahmedabad (the Tribunal for convenience) by its decision rendered on 29/07/1983 in Revision Application No. TEN B. A. 335 of 1982. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The dispute centres round one small piece of land bearing Survey No. 401/2 admeasuring 0 acre 39 gunthas situated in village Madodhar taluka Waghodia district Vadodara (the disputed land for convenience ). The petitioner was its tenant on 15/06/1958 the appointed day for the purposes of Section 32 (1b) of the Bombay Tenancy and Agricultural Lands Act 1948 (the Act for brief ). Respondent No. 1 herein was his landlord. It appears that the petitioner was duped into surrendering his possession of the disputed land in favour of respondent No. 1 herein before the specified date. The first authority presumably on application from the petitioner herein initiated the proceedings under Section 32 of the Act. By his order passed therein the first authority ordered restoration of possession of the disputed land in favour of the present petitioner and directed him to give the necessary undertaking to the effect that he would personally cultivate it. It appears that the petitioner understood this direction to mean that he was required to give such undertaking to the counterpart of the first authority at Waghodia. Apropos he appears to have given such undertaking to the Mamlatdar at Waghodia on 17/08/1978 at Annexure-A to this petition. The petitioners understanding that he was required to give such undertaking to the Mamlatdar at Waghodia was justified as transpiring from the order passed by the first authority at Annexure-B to this petition. Apropos he appears to have given such undertaking to the Mamlatdar at Waghodia on 17/08/1978 at Annexure-A to this petition. The petitioners understanding that he was required to give such undertaking to the Mamlatdar at Waghodia was justified as transpiring from the order passed by the first authority at Annexure-B to this petition. It has been mentioned therein that on 2/07/1979 a reminder to the present petitioner was issued for filing the necessary undertaking through the Talati-cum-Mantri at Waghodia in the Mamlatdars office thereat much to the chagrin and misfortune of the petitioner his undertaking at Annexure-A to this petition did not reach the first authority. Thereupon the first authority initiated the suo motu proceedings for resumption of the disputed land by the Government. It came to be registered as Tenancy Case No. 2506 of 1981. It does not become clear from the record whether or not any notice for initiation of such proceedings was given either to the landlord or the tenant that is the present petitioner. By his order passed on 23/02/1981 in Tenancy Case No. 2506 of 1981 the first authority ordered resumption of the disputed land by the Government. Its copy is at Annexure-B to this petition. It appears that the landlord who is respondent No. 1 in this petition felt himself aggrieved by the order at Annexure-B to this petition and he carried the matter in appeal before the Dy. Collector at Dabhoi. It came to be registered as Tenancy Appeal No. 19 of 1981. By his order passed on 28/09/1981 in Tenancy Appeal No. 19 of 1981 the Dy. Collector at Dabhoi dismissed it. Its Copy is at Annexure-C to this petition. That perhaps brought the present petitioner in the arena. He invoked the revisional jurisdiction of the Tribunal by means of his Revision Application No. TEN B. A. 335 of 1982. By its decision rendered on 29/07/1983 in the aforesaid revisional application the Tribunal rejected it both on merits and on the ground that it was incompetent. Its copy is at Annexure-D to this petition. He invoked the revisional jurisdiction of the Tribunal by means of his Revision Application No. TEN B. A. 335 of 1982. By its decision rendered on 29/07/1983 in the aforesaid revisional application the Tribunal rejected it both on merits and on the ground that it was incompetent. Its copy is at Annexure-D to this petition. The aggrieved petitioner has thereupon approached this Court by way of this petition under Article 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure-B to this petition as affirmed in appeal by the appellate order at Annexure-C to this petition as further affirmed in revision by the decision at Annexure-D to this petition. ( 3 ) IT appears that the authorities below have lost sight of the object behind introduction of Section 32 of the Act on the statute book. It is obviously for the benefit of quite a few ignorant and illiterate tenants who might have been duped by their clever crafty cunning scheming and shrewd landlords in surrendering their possession of the lands held by them by virtue of their tenancy rights. The benevolent object behind the aforesaid salutary statutory provision need not be lost sight of merely on technical considerations. The purpose of undertaking as mentioned in the proviso to Section 32 (1-B) of the Act is to see that the beneficial object behind the benevolent provision is given its fullest effect. The time limit provided therein is for the purpose of expediting the matter and not merely for the purpose of rigorously enforcing it. Rigorous enforcement of such rigid time limit might frustrate the benevolent object of bringing the aforesaid beneficial provisions on the statute book. With respect all the three lower forums seem to have lost sight of this underlying object of the relevant provisions contained in Section 32 of the Act. ( 4 ) AS pointed out hereinabove the petitioner appears to have understood that he was required to file the undertaking before the counterpart of the first authority at Waghodia. He appears to have done so as transpiring from its copy at Annexure-A to this petition. Neither respondent No. 1 nor respondent No. 2 has chosen to controvert this factual position mentioned in the petition by means of an appropriate affidavit-in-reply. The fact that the petitioner gave the necessary undertaking at Annexure-A to this petition thus remains uncontroverted. He appears to have done so as transpiring from its copy at Annexure-A to this petition. Neither respondent No. 1 nor respondent No. 2 has chosen to controvert this factual position mentioned in the petition by means of an appropriate affidavit-in-reply. The fact that the petitioner gave the necessary undertaking at Annexure-A to this petition thus remains uncontroverted. This petition has admittedly been filed on solemn undertaking given by the petitioner himself. The factual statement to the effect that the petitioner. gave the undertaking at Annexure-A to this petition has thus been made on oath. There is no reason why this uncontroverted factual statement on oath should not be accepted. Once that statement is accepted there is no escape from the conclusion that the petitioner did give the necessary undertaking as provided in the proviso to Section 32 of the Act. ( 5 ) IT is a settled principle of law that no party can be penalised by inaction or omission or default on the part of any authority or governmental machinery. The Mamlatdar at Waghodia was certainly a governmental authority. He ought to have transmitted the undertaking at Annexure-A to this petition to his counterpart at Dabhoi for the latters necessary action. If the Mamlatdar at Waghodia was at a loss to understand why the undertaking at Annexure-A was filed before him he ought to have summoned the petitioner and to have ascertained from him the purpose of filing it before him. Nothing of the sort appears to have been done. The Mamlatdar at Waghodia appears to have kept the undertaking at Annexure-A to this petition as a mere piece of paper presumably worth nothing. This approach and attitude on the part of the said governmental authority has resulted in adding to the present petitioners miseries and woes. The first authority presumably remained ignorant of the filing of the affidavit at Annexure-A to this petition. As transpiring from the order at Annexure-B to this petition a reminder to the petitioner appears to have been conveyed through the Mamlatdar at Waghodia regarding filing of the necessary undertaking. In fact that reminder ought to have stirred the Mamlatdar at Waghodia to action with respect to the undertaking at Annexure-A to this petition. It appears that he remained unmoved even at that stage. I have no words to condemn such inaction or omission on the part of that authority. In fact that reminder ought to have stirred the Mamlatdar at Waghodia to action with respect to the undertaking at Annexure-A to this petition. It appears that he remained unmoved even at that stage. I have no words to condemn such inaction or omission on the part of that authority. The unfortunate sufferer thereof and thereby is the present petitioner. ( 6 ) IT appears that respondent No. 1 carried the matter in appeal and the petitioner might have been advised not to move the appellate authority during the pendency of the appeal. The petitioner does not appear to be literate. He does not appear to be well off. Poor villagers are often found to be gullible. They accept the suggestion offered to them by persons whom they regard to be competent to do so. When the landlord failed in his appellate proceedings as transpiring from the order at Annexure-C to this petition it appears that the petitioner was advised to invoke if unsuccessfully the revisional jurisdiction of the Tribunal. On the part of the petitioner unfortunately it has proved to be an exercise in futility. ( 7 ) ANYWAY it is of no use lamenting over what has happened. It is required to be seen what can be done now. The necessary undertaking for the purpose of the proviso to Section 32 (1-B) of the Act is on record. That undertaking deserves to be accepted. The order at Annexure-B to this petition has been passed in ignorance of the undertaking at Annexure-A to this petition. Since the undertaking was very much there the first authority had no jurisdiction to pass the order at Annexure-B to this petition. It is an order without jurisdiction. It can be quashed in exercise of the extraordinary jurisdiction of this Court under Article 227 of the Constitution of india. ( 8 ) IN view of my aforesaid discussion I am of the opinion that the impugned order at Annexure-B to this petition as affirmed in appeal by the appellate order at Annexure-C to this petition as further affirmed in revision by the decision at Annexure-D to this petition is quashed and set aside. The order passed by the first authority ordering restoration of possession of the disputed land to the present petitioner under Section 32 of the Act deserves to be restored. ( 9 ) IN the result this petition is accepted. The order passed by the first authority ordering restoration of possession of the disputed land to the present petitioner under Section 32 of the Act deserves to be restored. ( 9 ) IN the result this petition is accepted. The impugned order passed by the Mamlatdar at Dabhoi on 23/02/1981 in Tenancy Case No. 2506 of 1981 at Annexure-B to this petition as affirmed in appeal by the Dy. Collector at Dabhoi by his order passed 0n 28/09/1981 in Tenancy Appeal No. 19 of 1981 at Annexure-C to this petition as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad an 29/07/1983 in Revision Application No. TEN B. A. 335 of 1982 at Annexure-D to this petition is quashed and set aside. The order passed by the first authority in the proceedings under Section 32 (1-B) of the Act ordering restoration of possession of the disputed land in favour of the present petitioner is ordered to be restored. The first authority is directed to proceed further in the matter according to law. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. .