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2016 DIGILAW 1753 (GUJ)

Shaknarbhai Bhikhabhai v. Laxmidas Zaverbhai

2016-08-16

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present petition is directed against the order dated 5.10.1995 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "the Tribunal") in Revision Application No. TEN/BA/728/1992, whereby the Tribunal while allowing the said Revision Application has set aside the order dated 4.8.1992 passed by the Deputy Collector, Vadodara in Tenancy Appeal No. 16/1992, and confirmed the order dated 29.11.1991 passed by the Mamlatdar and ALT, Vadodara in Tenancy Case No. 895/1989 (Remand Case No. 6408/1991), arising out of the suo motu proceedings undertaken by the Mamlatdar under Section 32(1B) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the said Act"). 2. The few facts relevant for the purpose of deciding the present petition are that the petitioners are the legal heirs of the deceased Shankarbhai Bhikhabhai, who was allegedly occupying the lands bearing Survey Nos. 240, 241 and 253, admeasuring 2.05 acres, 1.19 acres and 1.28 acres respectively in Village Sama, which originally belonged to one Mirnuruddin Huseinkhan Nawab. As per the case of the petitioners, the said Shankarbhai Bhikhabhai was occupying the said lands as the protected tenant since 1951-52 till 1965 and thereby he had become the deemed purchaser of the said lands. However, the Mamlatdar by the order dated 1.4.1966 mutated the entry No. 1020, deleting the name of the said Shankarbhai Bhikhabhai from the record of rights, vide his order dated 3.3.1966. It is further case of the petitioners that the original owner thereafter sold out the lands in question by executing two different sale deeds in favour of one Laxmidas Zaverbhia and Shantibhai Laxmidas in respect of which necessary entries were also made in the record of rights. It appears that on the basis of one report sent by the R.T.S. Team, Unit No. 3, in the year 1989, the Mamlatdar and ALT initiated the proceedings under Section 32(1B) of the said Act against the original owners, however, the said proceedings came to be dropped by the Mamlatdar vide the order dated 7.3.1990. The petitioners being aggrieved by the said order had preferred an appeal being Appeal No. 25/90 before the Deputy Collector under Section 74 of the said Act, which came to be partly allowed. The Deputy Collector remanded the proceedings back to the Mamlatdar and ALT vide the order dated 14.2.1991. The petitioners being aggrieved by the said order had preferred an appeal being Appeal No. 25/90 before the Deputy Collector under Section 74 of the said Act, which came to be partly allowed. The Deputy Collector remanded the proceedings back to the Mamlatdar and ALT vide the order dated 14.2.1991. The Mamlatdar and ALT thereafter vide the order dated 29.11.1991 held that the tenant Shankarbhai Bhikhabhai had voluntarily surrendered his rights in the lands in question and that the original owner having sold out the lands in question to the third party, the provisions of Section 32(1B) did not apply to the lands in question. The Mamlatdar, therefore, withdrew the notice issued under the said provision. The aggrieved petitioner No. 1 preferred an appeal being Appeal No. 16/1992 before the Deputy Collector, who vide the order dated 4.8.1992 allowed the said appeal and directed to fix the purchase price of the lands in question under Section 32G of the said Act. Against the said order passed by the Deputy Collector, the respondent Nos. 1.1 to 1.4 preferred the Revision Application being No. 728/1992 before the Gujarat Revenue Tribunal, who vide the order dated 5.10.1995 allowed the same and set aside the order passed by the Deputy Collector. Hence, the aggrieved petitioners have preferred the present petition. 3. The petition has been resisted by the concerned respondents, who are the legal heirs of the original purchaser Laxmidas Zaverbhai by filing reply denying the allegations made in the petition, and supporting the impugned order passed by the Tribunal. The petitioners have filed the affidavit-in-rejoinder to the said reply filed by the respondents. 4. In the first limb of his arguments, the learned Senior Counsel Mr. Mihir Thakore, appearing with Mr. Deep Vyas, learned Counsel for the petitioners submitted that admittedly the deceased Shankarbhai Bhikhabhai was in occupation of the lands in question on the appointed date i.e. 15.6.1955 and he was dispossessed from the lands in question before the specified date i.e. 3.3.1973, without following any procedure or complying with the provisions contained in the said Act, and therefore, the Deputy Collector had rightly held that the said Shankarbhai Bhikhabhai had become the deemed purchaser in respect of the lands in question, however, the said findings have been erroneously set aside by the Tribunal by holding that the conditions contained in Section 32(1B) of the said Act were not fulfilled. Placing reliance on the decision of this Court in the case of Maneksha Beramsha v. Mochibhai Puniyabhai Khodo, reported in, 1994 (1) GLH 400 he further submitted that the said Act being a benevolent legislation, the Mamlatdar was entrusted with the suo motu powers to initiate the proceedings under Section 32(1B), even though the aggrieved tenant had not made any application in that regard and that there was no period of limitation prescribed under the said provisions for initiating such action. He also relied upon the decision of this Court in the case of Bhikhabhai A. Jadav and Ors. v. Vaidya Gamanlal J., reported in, 2001 (1) GLR 663 to submit that surrender of the land by the tenant, by private arrangement cannot have any legal efficacy, and that in the instant case, the procedure contained in Section 15 of the said Act having not been followed, the so-called surrender of rights made by the said Shankarbhai Bhikhabhai also did not have any legal efficacy. 5. However, the learned Counsel Mr. A.J. Patel for the private respondent Nos. 1.1 to 1.4, relying upon the decision of this Court in the case of Motibhai Panchabhai Khristi v. Maganbhai Desaibhai Patel, reported in, 1981 GLR 107 , as also the decision in the case of Rasulmiya Rehmanmiya v. Patel Lalbhai Shankerbhai, reported in, 1983 (1) GLR 714 submitted that the requisite conditions for the purpose of attracting the provisions contained in Section 32(1B) having not been found to be fulfilled, the original landlord being not in possession of the lands in question on the specified date, the Tribunal has rightly held that the provisions of Section 32(1B) were not applicable to the facts of the present case. He also submitted that though there is no period of limitation prescribed in the said provision, the Mamlatdar was required to initiate the proceedings within a reasonable time. Reliance was also placed on the decision of the Supreme Court in the case of Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal, reported in, 1995 (1) GLR 344 (SC) to submit that voluntary giving up of possession did not amount to dispossession. He also placed reliance on the decision of the Supreme Court in the case of Mohd. Yunus v. Mohd. He also placed reliance on the decision of the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaqim and Ors., reported in, AIR 1984 SC 38 to submit that the jurisdiction under Article 227of the Constitution being supervisory jurisdiction, the High Court cannot correct even the error apparent on the face of record, much less the error of law. 6. Before adverting to the rival contentions raised by the learned Counsels for the parties, it would be beneficial to reproduce the relevant provisions contained in Section 15 as it stood at the relevant time, with regard to termination of tenancy by surrender thereof:- "15. Termination of tenancy by surrender thereof.- (1) A tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlords: Provided that such surrender shall be in writing, and verified before the Mamlatdar in the prescribed manner. (2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in so far as the conditions are applicable subject to the like conditions as are provided in sections 31 and 31A for the termination of tenancies. (2A) The Mamlatdar shall, in respect of the surrender verified under sub-section (1), hold an inquiry and decide whether the landlord is entitled under sub-section (2) to retain the whole or any portion of the land so surrendered and specify the extent and particulars in that behalf.] (3) The land, or any portion thereof, which the landlord is not entitled to retain under sub-section (2), shall be liable to be disposed of in the manner provided under clause (c) sub-section (2) of section 32P." 7. The Mamlatdar having initiated the proceedings under Section 32(1B) of the said Act, it would be also beneficial to reproduce the same for ready reference:- "Section 32. The Mamlatdar having initiated the proceedings under Section 32(1B) of the said Act, it would be also beneficial to reproduce the same for ready reference:- "Section 32. Tenants deemed to have purchased land on tillers' day:- (1) xxx (1A) xxx (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 and such land or part thereof is not put to a non-agricultural use on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section29 or any other provision of this 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 the 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 subsection; 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." 8. So far as the facts of the present case are concerned, it is not disputed that the deceased Shankarbhai Bhikhabhai, predecessor-in-title of the present petitioners was occupying the lands in question as the tenant on the appointed date i.e. 15.6.1955 as referred in Section 32(1B) of the said Act. It is also not disputed that he was not in possession of the lands in question on the specified date i.e. 3.3.1973 as referred to in the said provision. It is also not much disputed that his name was deleted from the record of the rights vide the Entry No. 1020 certified as per the order dated 1.4.1966 passed by the RTS Mamlatdar. It is also not disputed that the said lands were purchased by the predecessor-in-title of the respondents No. 1.1 to 1.4 i.e. Laxmidas Zaverbhai and shantibhai Laxmidas as per the two registered sale deeds executed on 22.5.1967, in respect of which two entries being Entry No. 1216 and No. 1217 were posted in their favour on 27.11.1967. It appears that thereafter the Mamlatdar and ALT initiated suo motu proceedings under Section 32(1B) of the said Act on 18.9.1989 i.e. about 22 years after the said entries were posted and the sale deeds were executed by the original owner. 9. It appears that thereafter the Mamlatdar and ALT initiated suo motu proceedings under Section 32(1B) of the said Act on 18.9.1989 i.e. about 22 years after the said entries were posted and the sale deeds were executed by the original owner. 9. Though it is true that there is no period of limitation prescribed for initiating suo motu proceedings under Section 32(1B) of the said Act, as per the legal position settled by this Court in the case of Maneksha Beramsha v. Mochibhai Puniyabhai Khodo (supra) and in the case of Rasulmiya Rehmanmiya v. Patel Lalbhai Shankerbhai (supra), the said powers have to be exercised by the Mamlatdar within a reasonable period. In the opinion of the Court non-mentioning of period of limitation would not entitle the Authority to initiate proceedings after unreasonable lapse of period. In the instant case, the period of 22 years could not be said to be a reasonable period by any stretch of imagination to initiate suo motu proceedings under the provisions contained in Section 32(1B). It is held in the case of Rasulmiya Rehmanmiya v. Patel Lalbhai Shankerbhai (supra) that the suo motu powers should be exercised within a reasonable time and what is reasonable time would depend upon the facts and circumstances of each case. In any case, the period of 22 years could not be said to be reasonable period and, therefore, the Mamlatdar should not have initiated the proceedings after such a gross delay of 22 years. 10. That apart, from the bare reading of the provisions of Section 32(1B), it appears that the said provisions could be invoked only in the circumstances mentioned therein i.e. if the tenant was in possession of the land in question on the appointed date i.e. 15.6.1955; if he was dispossessed from such land by the landlord at any time before the specified date i.e. 3.3.1973, otherwise than in the manner provided under Section 29 or any other provisions of the said Act; if the lands in question or part thereof was in possession of the landlord or his successor in interest on the said date i.e. 3.3.1973 and if such land or part thereof was not put to non-agricultural use on or before the said date. As per the explanation to Section 32(1B), "successor-in-interest" means a person who acquires the interest by testamentary disposition or devolution on death. As per the explanation to Section 32(1B), "successor-in-interest" means a person who acquires the interest by testamentary disposition or devolution on death. Admittedly, the original landlord was not in possession of the lands in question on the specified date i.e. 3.3.1973, he having sold out the lands in question to Laxmidas Zaverbhai and Shantibhai Laxmidas by executing the sale deeds on 22.5.1967. The entries in that regard were also certified by the competent authority as back as on 27.11.1967. The said purchasers could also not be said to be the "successor in interest" as per the explanation to Section 32(1B) of the said Act. Hence, on the date of initiation of the suo motu proceedings by the Mamlatdar, the landlord or his successor in interest being not in possession of the lands in question, as rightly held by the Tribunal, the provisions contained in Section 32(1B) were not applicable to the facts of the present case. The Tribunal having rightly interpreted the provisions contained in Section 32(1B) and having rightly relied upon the decision in the case of Motibhai Panchabhai Khristi v. Maganbhai Desaibhai Patel (supra), the Court is of the opinion that there is no error committed by the Tribunal in coming to the conclusion that the Deputy Collector had committed an error in holding that the provisions contained in Section 32(1B) were applicable to the facts of the case. 11. The Court also does not find any merit in the submission made by Mr. Thakore that the procedure contained in Section 15 of the said Act was not followed by the Mamlatdar, when the original tenant Shankarbhai Bhikhabhai allegedly surrendered his rights in the lands in question. It is pertinent to note that the said Shankarbhai Bhikhabhai had put his signature as witness in the sale deeds executed by the original owner in favour of the two purchasers Laxmidas Zaverbhai and Shantibhai Laxmidas, and the said Shankarbhai Bhikhabhai had never raised any dispute during his life time as regards the execution of the said sale deeds or about deletion of his name from the record of rights as per the Entry No. 1020 pursuant to the order passed by the Mamlatdar on 1.4.1966. By the time the Mamlatdar had initiated the proceedings, the said Shankarbhai and his son Shantilal both had expired. By the time the Mamlatdar had initiated the proceedings, the said Shankarbhai and his son Shantilal both had expired. The petitioner No. 1 Punjiben Shantilal, who happened to be the daughter-in-law of the said Shankarbhai Bhikhabhai had stated in her deposition before the Mamlatdar that she did not know whether her father-in-law had surrendered his rights voluntarily or not and that she did not know as to who was the owner of the lands in question. There was no evidence whatsoever produced on record before any authority by the petitioners to substantiate the contention that the termination of tenancy by surrender made by the deceased Shankarbhai Bhikhabhai in the year 1965-66 was not legal or was not in accordance with the provisions contained in Section 15 of the said Act. Mr. A.J. Patel has rightly relied upon the decision of the Supreme Court in case of Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal (supra) in which it has been held as under:- "4…. The effect of surrender was that the appellant ceased to be tenant. Assuming that surrender was invalid and the appellant left the possession over land of his own accord, was he dispossessed as contemplated in 32(1-B) of the Act? Voluntary giving up of possession does not amount to dispossession unless the law provides for it. "Dispossess" according to Black's Law Dictionary means: "To oust from land by legal process; to eject, to exclude from reality." The dispossession should have been, therefore, either by legal process or by physical act of exclusion. It would not include leaving possession voluntarily or by surrender." 12. In view of the above and in absence of any material on record, it is difficult to hold that the said Shankarbhai was dispossessed by the landlord before the specified date, as contemplated in Section 32(1B) of the said Act. The Mamlatdar and ALT had rightly appreciated the said evidence on record to reach to the conclusion that the provisions contained in Section 32(1B) were not attracted and, therefore, the proceedings were required to be dropped. The said order was wrongly set aside by the Deputy Collector. In any case, the Tribunal has again confirmed the order passed by the Mamlatdar and ALT, which order does not suffer from any illegality or infirmity. 13. In that view of the matter, the petition being sans merits, is dismissed. Rule is discharged. The said order was wrongly set aside by the Deputy Collector. In any case, the Tribunal has again confirmed the order passed by the Mamlatdar and ALT, which order does not suffer from any illegality or infirmity. 13. In that view of the matter, the petition being sans merits, is dismissed. Rule is discharged. Interim relief, if any, stands vacated. No order as to costs.