Research › Search › Judgment

Gujarat High Court · body

2000 DIGILAW 910 (GUJ)

PATEL NAROTTAMBHAI RANCHHODDAS v. STATE

2000-10-13

R.M.DOSHIT

body2000
R. M. DOSHIT, J. ( 1 ) HEARD the learned Advocates ( 2 ) THE petitioner challenges the judgment and order dated 5th September, 1991 passed by the learned Gujarat Revenue Tribunal in Revision Application No. TEN:ba:261 of 1989 ( 3 ) THE petitioner was a tenant of land bearing Survey No. 1035 admeasuring 1 Acre 8 Gunthas and land bearing Survey No. 1036 admeasuring 1 Acre 16 gunthas situated at Mehsana which belonged to one Charitable Trust - Shree hanuman Sanstha. Upon enactment of Sec. 88-E of the Bombay Tenancy and agricultural Lands Act, 1948 (hereinafter referred to as, the Act), the petitioner, on the specified date (i. e. , 15th November, 1969) became deemed purchaser of the said lands and the provisions of Sec. 32 to 32-R (both inclusive) became applicable. Since then, pursuant to the proceedings under Sec. 32-G of the Act, by order dated 30th November, 1971 made by the Mamlatdar and Agricultural lands Tribunal, the petitioner was declared to be the owner and the price of the lands was determined. The ownership of the petitioner of the said lands was declared to be of restrictive tenure subject to Sec. 43 of the Act. The said order insofar as it made the petitioners holding to be of restrictive tenure was challenged by the petitioner in Tenancy Appeal No. 15 of 1988 before the Prant Officer. The Prant Officer, Mehsana by his order dated 15th October, 1988 held that since the amendment to Sec. 43 of the Act, the petitioners holding of the said lands became subject to the restrictions envisaged under sec. 43 of the Act. Feeling aggrieved, the petitioner preferred the above revision application before the Revenue Tribunal, which, by the judgment and order dated 5th September, 1991 confirmed the order of the Prant Officer, Mehsana. Feeling aggrieved, the petitioner has preferred the present petition ( 4 ) MR. Vyas has relied upon the judgment of this Court in the matter of motibhai Nathabhai v. Trustee of Ramji Mandir, Baroda 1974 GLR 18 . Feeling aggrieved, the petitioner has preferred the present petition ( 4 ) MR. Vyas has relied upon the judgment of this Court in the matter of motibhai Nathabhai v. Trustee of Ramji Mandir, Baroda 1974 GLR 18 . He has submitted that by the said judgment, this Court has held Sec. 88-E of the act to be prospective in its operation and similarly amendment in Sec. 43 made under the Gujarat Act XXI of 1987 shall be held to be prospective and only those acquisitions of land under Sec. 88-E which are effected after the effective date of amendment i. e. . on or after 20th April, 1987 shall be subject to the restrictions contained in Sec. 43 of the Act. However, admittedly, the petitioner had purchased the lands in the year 1971 and the petitioners holding of the said lands shall not be affected by the restrictions contained in Sec. 43 of the Act ( 5 ) BEFORE I deal with the argument advanced by Mr. Vyas, it shall be fruitful to discuss the relevant law ( 6 ) SECTION 32 of the Act provides, inter alia, that on the first day of April, 1957 (tillers day) every tenant shall 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. Sec. 32f of the Act provides for a right of tenant to purchase the land where landlord is a minor, or a widow, or a person subject to any mental or physical disability. Sec. 32-G of the Act, inter alia, provides for theprocedure to be followed by the Tribunal for determining the purchase price of the land. Sec. 32-1 of the Act provides, inter alia, that the sub-tenant shall be deemed to have purchased the land on the tillers day. Sec. 32-0 of the Act provides, inter alia, that in case of tenancy created after the tillers day, the tenant cultivating personally shall be deemed to have purchased the land on the date of expiry of one year from the commencement of such tenancy from the landlord, the land held by him. Sec. 43 of the Act (prior to its amendment by Gujarat Act XXI of 1987) provides, inter alia, that no land or any interest therein purchased by tenant under Secs. Sec. 43 of the Act (prior to its amendment by Gujarat Act XXI of 1987) provides, inter alia, that no land or any interest therein purchased by tenant under Secs. 17-B, 32, 32-F, 32-1, 32-0 or sold to any person under Sec. 32-P or 64 of the Act shall be transferred or shall be agreed to be transferred without previous sanction of the collector and except in consideration of payment of such amount as, the State government may determine. Since its amendment by the Act of Gujarat XXI of 1987 on and from 20th April, 1987, the lands purchased by a tenant under sec. 32-U, 43-ID or 88-E have also been included in Sec. 43 and have been made subject to the restrictions contained in Sec. 43 of the Act. Sec. 88-B of the Act, inter alia, exempts the lands which were the property of a Trust for an educational purpose, a hospital, Panjrapole or Gaushala from the application of the provisions of the Act mentioned in the said Section. Section 88-E of the act was inserted by the Gujarat Act XVI of 1969. The said Section provides that with effect on and from the specified date, lands which are the property of an institution for public religious worship shall cease to be exempted from those provisions of the Act except Secs. 31 to 3 ID (both inclusive) from which they were exempted under Sec. 88-B and all certificates granted under that Section in respect of such lands shall stand revoked. Sub-sec. (2) thereof provides that in case of tenancy subsisting immediately before the specified date, the tenants shall be deemed to have purchased the land on the specified date and the provisions of Sec. 32 to 32-R (both inclusive) shall apply. Thus, the lands which were earlier exempted from the rigours of the Act under Sec. 88-B of the Act have been subjected to the same rigours under Sec. 88-E of the Act ( 7 ) I see no substance in the contention raised by Mr. Vyas. In the matter of Motibhai Nathabhai (supra), this Court held that Sec. 88-E was prospective in nature so that it would not affect the proceedings which were initiated on the basis of exemption granted under Sec. 88-B of the Act. Vyas. In the matter of Motibhai Nathabhai (supra), this Court held that Sec. 88-E was prospective in nature so that it would not affect the proceedings which were initiated on the basis of exemption granted under Sec. 88-B of the Act. The Court further held that those of the landlords who had acquired exemption under Sec. 88-B of the Act, but had not initiated action for terminating the tenancy shall be hit by Sec. 88-E of the Act. In other words, Sec. 88-E was held to be prospective only to the extent that it would not affect the pending proceedings. That is, in case of a land where exemption was granted under Sec. 88-B of the Act, but no proceedings for termination of tenancy were initiated, such exemption would stand revoked on the effective date i. e. , 15th November, 1969 under Sec. 88e of the Act. Section 43 of the Act contains restrictions against transfer of lands acquired under the. provisions referred to in the said Section. Prior to its amendment by Act No. XXI of 1987, the lands purchased by a tenant under Sec. 17-B, 32, 32-F, 32-1 and 32-0 or sold to any person under sec. 32-P or 64 were made subject to the restrictions contained in the said section. After its amendment by the Gujarat Act No. XXI of 1987, the land purchased by a tenant under Sec. 32-U, 43-1d and 88-E are also made subject to the restrictions under Sec. 43 of the Act. In my view, only construction that can be put is that if a tenant is deemed to have purchased a land under sec. 88-E of the Act and transfers such land on or after 20th April, 1987, such transfer shall be subject to restrictions contained in Sec. 43 of the Act. No other construction is possible because all lands which were of an Institution for public religious worship were deemed to have been purchased by the tenant on and with effect from the specified date i. e. , 15th November, 1969. All such tenants became the deemed purchasers of the lands in their possession on 15th november, 1969. If the arguments of Mr. Vyas were accepted, all lands purchased under Sec. 88-E prior to 20th April, 1987 should be considered to be of old tenure lands. All such tenants became the deemed purchasers of the lands in their possession on 15th november, 1969. If the arguments of Mr. Vyas were accepted, all lands purchased under Sec. 88-E prior to 20th April, 1987 should be considered to be of old tenure lands. In that case, inclusion of Sec. 88-E in Sec. 43 shall become nugatory since all such lands are deemed to have been purchased on 15th November, 1969 and no land can be said to have been purchased under sec. 88-E of the Act on or after 20th April, 1987. Necessarily, therefore, inclusion of Sec. 88-E in Sec. 43 of the Act is intended to govern the transfer of land on and from the date of the amendment of the said Section, i. e. , 20th April, 1987, which under Sec. 88-E of the Act, the tenant is deemed to have purchased on 15th November, 1969, irrespective of the actual date of such purchase and payment of price thereof. In my view, therefore, the authority below as well as the learned Tribunal are right in holding that since 20th April, 1987, the lands purchased by the petitioner under Sec. 88-E of the Act are subject to the restrictions contained in Sec. 43 of the Act ( 8 ) IN view of the above discussion, the petition is dismissed. Rule is discharged. The parties shall bear their own costs .