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2009 DIGILAW 547 (GUJ)

Bhanubhai Ukediabhai v. State of Gujarat

2009-08-11

AKIL KURESHI, K.S.RADHAKRISHNAN

body2009
Judgment Akil Kureshi, J.—The appeal is directed against the decision of the Learned Single Judge dated 6.8.2008 passed in Special Civil Application No. 9024/2000. 2. Issue pertains to tenancy rights over land bearing Survey No. 136 admeasuring 4 acres and 20 gunthas of village Palia, Tal. Jetpur-Pavi, District Vadodara. The petitioner Bhanubhai Ukediabhai along with his two brothers filed an application before the Mamlatdar and ALT, Baroda on 6.12.1996 under Section 70(b), 32PPP and 32G of the Bombay Tenancy and Agricultural Lands Act (“the Tenancy Act” for short). Their case was that their predecessor-in-title Ukediyabhai Daliyabhai was a protected tenant and accordingly entries in record of rights were made to this effect. 3. Mamlatdar and ALT by order dated 26.12.1997 held that the applicants were entitled to purchase of land upon payment of price of Rs.1643.20. Respondent No. 3-land owner appealed against the order passed by the Mamlatdar and ALT before the Deputy Collector, Chhotaudepur, who by his order dated 2.7.1998 allowed the appeal and set aside the order passed by the Mamlatdar and ALT. Petitioner preferred Revision Application before the Gujarat Revenue Tribunal which came to be dismissed by an order dated 10.6.1999, upon which he preferred above-mentioned petition which also came to be dismissed by the Learned Single Judge by impugned judgement dated 6.8.2008. 4. Though the Mamlatdar found that the father of the petitioner was cultivating the lands as a tenant and that the petitioner and his other brothers were entitled to benefit of provisions under Section 32(1B) of the Tenancy Act, the Deputy Collector as well as Gujarat Revenue Tribunal did not find sufficient evidence to entertain the application. The Tribunal in particular, noted that though the name of Ukediyabhai was found in the records as a protected tenant, same was deleted by entry No. 166 dated 2.11.55 in which it is mentioned that he has left possession before seven years. This entry was never challenged by Ukediyabhai during his life time. His sons have tried to raise the issue by making application nearly 40 years after entry was made. The Tribunal therefore, held that the case is covered neither under Section 32-G nor under Section 32(1B) of the Tenancy Act. 5. Learned Single Judge in a detailed decision dated 6.8.2008 upheld the orders passed by the Deputy Collector as well as Gujarat Revenue Tribunal. The Tribunal therefore, held that the case is covered neither under Section 32-G nor under Section 32(1B) of the Tenancy Act. 5. Learned Single Judge in a detailed decision dated 6.8.2008 upheld the orders passed by the Deputy Collector as well as Gujarat Revenue Tribunal. She found that Section 32PPP of the Tenancy Act would not apply since the land was not at the disposal of the Collector on account of purchase of the land by the tenant having become ineffective under Section 32G of the Tenancy Act. She also found that father of the petitioner was not holding the land on the Tiller’s day i.e. 1.4.57. Therefore, Section 32G of the Tenancy Act would not apply. She further held that Section 32(1B) of the Tenancy Act could not be invoked since there is nothing on record to suggest that predecessor-in-title of the petitioner was in possession of the land on the appointed day. 6. We have heard learned advocate Shri Amit Patel for the petitioner and learned AGP Shri Devang Vyas for the State appearing on advance copy. 7. Learned Advocate Shri Patel vehemently submitted that father of petitioner was a protected tenant. He was dispossessed without following due process of law. His so-called surrender of the tenancy was not in consonance with Sections 15 and 29 of the Tenancy Act. Such surrender would be nonest. The petitioner is required to be declared as tenant and allowed to purchase the land in question. Learned AGP on the other hand supported the decisions under challenge. 8. It is not in dispute that father of the petitioner who was alive, till 1991 or 1992, never raised claim of tenancy over the suit land. Long after father passed away and nearly 40 years after the entries in the revenue records were made, deleting his father as a protected tenant, the petitioner in the year 1996 for the first time approached Mamlatdar under Section 70(b) of the Tenancy Act claiming benefits of Section 32-PPP and 32-G of the Tenancy Act. The Deputy Collector as well as the Tribunal concurrently came to the conclusion that by Entry No. 166, the petitioner’s father’s name was deleted as a protected tenant way back on 2.11.55 in which also it was mentioned that he had voluntarily left the possession before seven years. The Deputy Collector as well as the Tribunal concurrently came to the conclusion that by Entry No. 166, the petitioner’s father’s name was deleted as a protected tenant way back on 2.11.55 in which also it was mentioned that he had voluntarily left the possession before seven years. Admittedly, this entry was never challenged by the father of the petitioner during his life time. No application under Section 32(1B) was also made, though the father of the petitioner was alive for a long time after the said Sub-section was added in the statute. 9. To these concurrent findings of fact, the learned Single Judge also put her seal. She also found that father of the petitioner was not cultivating the land on the appointed day or even on the Tiller’s day. In that view of the matter, we see no infirmity in the view of the learned Single Judge that the petitioner cannot claim the benefit of Section 32-PPP, or 32-G or 32(1B) of the Tenancy Act. 10. In fact, at the outset the claim of the petitioner was under Section 32-PPP and 32-G of the Tenancy Act. It was perhaps only Mamlatdar who had on his own converted the case into one under Section 32(1B) of the Tenancy Act. 10. In fact, at the outset the claim of the petitioner was under Section 32-PPP and 32-G of the Tenancy Act. It was perhaps only Mamlatdar who had on his own converted the case into one under Section 32(1B) of the Tenancy Act. Section 32(1B) reads as follows : “32(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 land or any part thereof and such land or part thereof is in the possession of the landlord or his successor-in-interest on the said date, then the Mamlatdar shall, notwithstanding anything contained in the said Section 29 or any other provision of the Act, either suo motu or on an application of the tenant made within the prescribed period, hold an inquiry and direct that such land or as the case may be, 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 successor-in-interests is not entitled to retain under this sub-section; 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 Sub-section (2) of Section 32P] Explanation.—In this sub-section “successor” in interest-means a person who acquires the interest by testamentary disposition or devolution on death.]” 11. There is nothing on record to suggest that father of the petitioner was in possession of the land on the appointed day. Nothing has been produced before the Courts below or before us to come to a finding different from one accepted by the Deputy Collector, Gujarat Revenue Tribunal as well as Learned Single Judge in this regard. 12. Advocate for the petitioner heavily relied on decision of Apex Court in case of Babu Parasu Kaikadi (Dead) by L.Rs. vs. Babu (Dead) by L.Rs. reported in AIR 2004 Supreme Court 574, wherein the Apex Court observed that though surrender of tenancy by the tenant was voluntary, same not being in terms of Sections 15 and 29 of the Tenancy Act, such surrender would not be valid. So finding, the Apex Court directed restoration of possession of the land to the tenant in terms of 32(1B) of the Tenancy Act. In the present case, however, we are not concerned with the validity of surrender of tenancy by the tenant. Reference to the tenancy of the father of the petitioner is to be found only in an old entry in the record of rights. However, such entry was deleted by subsequent entry No. 166, that too was made in the year 1955. Other than this entry, there is nothing on record to suggest that the father of the petitioner was cultivating the land as tenant. In fact the Tribunal has considered this aspect at length and found that tenancy of father of the petitioner was not established. That being the fact situation, there is no question of valid or invalid surrender thereof. 13. In fact in decision of Babu Parasu Kaikadi (Supra) the Apex Court highlighted salient features of Section 32(1B) of the Tenancy Act in following terms : “12. The salient features of Section 32(1B) of the Act are : (1) that the tenant must be in possession of land on 15-6-1955, and (2) the tenant was evicted otherwise than by an order of the Mamlatdar before 1.4.1957 and (3) the landlord or his successor-in-interest which includes persons who acquire interest by testamentary disposition or devolution on death must be in possession as on 31.7.1969 and (4) the land is not put to a non-agricultural use before 31.7.1969.” The above requirements in the present case are found not fulfilled by the Dy. Collector, Gujarat Revenue Tribunal and learned Single Judge. Collector, Gujarat Revenue Tribunal and learned Single Judge. We are also in agreement with the view of the learned Single Judge. 14. For the same reason, reliance on the decisions in case of Ramchandra Keshav Adke (Dead) by Lrs. vs. Govind Joti Chavare and Others reported in AIR 1975 Supreme Court 915 and in case of Abdul Ajij Shaikh Jumma and another vs. Dashrath Indas Nhavi and Others reported in 1987 (2) GLH 142 which highlighted mandatory nature of requirements of Sections 15 and 29 of the Tenancy Act for a valid surrender of tenancy would not further the case of the appellant. 15. Under the circumstances, we find no merits in the appeal. Appeal is dismissed. Civil Application also stands dismissed accordingly