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2017 DIGILAW 365 (GUJ)

Shankerbhai Bhikhabhai v. Laxmidas Zaverbhai

2017-02-14

R.SUBHASH REDDY, V.M.PANCHOLI

body2017
JUDGMENT : V.M. Pancholi, J. 1. By way of this appeal filed under Clause 15 of the Letters Patent, the appellants - original petitioners seek to challenge order dated 16.08.2015 passed by the learned Single Judge in Special Civil Application No. 2704 of 1996, by which the learned Single Judge has dismissed the petition. 2. Brief facts for deciding the issue involved in the present case are as under:- "[2.1] That the appellants - original petitioners are legal heirs of deceased Shankarbhai Bhikhabhai who was allegedly occupying the land bearing Survey Nos. 240, 241 and 253 ad-measuring Acre 2-85 Gunthas, Acre 1-19 Gunthas and Acre 1-28 Gunthas respectively in Village Sama. In the record of rights of the said land, the name of the deceased tenant has been shown from 1951-52 onwards being a protected tenant. On 01.04.1957, said tenant was in occupation of the land in question till 1965 and his name was shown in the record of rights. It is the say of the original petitioners that as tenant was in occupation of the land in question on 01.04.1957, he became deemed purchaser of the land in question. However, RTS, Mamlatdar by his order dated 01.04.1965 has mutated the Entry No. 1020 whereby name of the tenant has been deleted from the second right by relying on order dated 03.03.1966. It is the case of the petitioners that thereafter, land owner has sold the land in question by executing two different registered sale deeds to Laxmidas Zaverbhai and Shantibhai Laxmidas. Entries to that effect has been mutated in the record of rights. Thereafter, on 18.09.1992, RTS Team Unit has sent a report to the Mamlatdar and ALT and on the basis of the same, proceedings has been initiated by the Mamlatdar and ALT against private respondents. However thereafter, said proceedings are dropped. The petitioners therefore, filed appeal before the Deputy Collector against the order passed by the Mamlatdar and ALT. Deputy Collector partly allowed the said appeal and matter was remanded back to the Mamlatdar and ALT. Thereafter, Mamlatdar and ALT once again by his order dated 29.11.1991 has withdrawn the notice issued under section 32(1B) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'). The petitioners therefore, once again filed appeal against the said order before the Deputy Collector. Thereafter, Mamlatdar and ALT once again by his order dated 29.11.1991 has withdrawn the notice issued under section 32(1B) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'). The petitioners therefore, once again filed appeal against the said order before the Deputy Collector. The Deputy Collector quashed and set aside the order passed by the Mamlatdar and ALT and thereby held that as tenant was in possession of the land in question as protected tenant on 01.04.1957, he is required to be considered as deemed purchaser and therefore, proceedings under section 32(G) of the Act are required to be initiated. [2.2] Private respondents therefore, filed appeal being Revision Application No. 728 of 1992 before the Gujarat Revenue Tribunal and the Tribunal by order dated 05.10.1995 quashed and set aside the order passed by the Deputy Collector and thereby confirmed the order passed by the Mamlatdar and ALT. The petitioners therefore, filed captioned petition before this Court, wherein the petitioners prayed for following reliefs:- "9(A) .... (B) This Hon'ble Court would be pleased to issue an appropriate writ, order or direction quashing and setting aside the order passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/728 of 1992 dated 05.10.1995; and thereby upholding the orders passed by the Deputy Collector, Baroda in Tenancy Appeal No. 16 of 1992 dated 04.08.1999 and thereby directing the authorities to fix the purchase price of the land in question under the provisions of Section 32(1G) of the Act." (C) ..... (D) .... (E) ...." [2.3] Learned Single Judge by impugned order dated 16.08.2016 dismissed the petition and therefore, present appeal is filed." 3. Heard learned advocate Mr. Majmudar for the appellants - original petitioners and learned Senior advocate Mr. Sanjanwala assisted by learned advocate Mr. Darshan Varandani for private respondents i.e. respondent Nos. 1.1 to 1.4. 4. Learned advocate Mr. Majumdar has mainly contended that deceased Shankerbhai Bhikhabhai was in occupation of the land in question on the "appointed day" i.e. 15.06.1956 and he was dispossessed from the lands before the specified date i.e. 03.03.1973 without following any procedure or complying with the provisions contained in the Act. Thus, Shankerbhai Bhikhabhai had become deemed purchaser in respect of the lands in question. Learned advocate Mr. Thus, Shankerbhai Bhikhabhai had become deemed purchaser in respect of the lands in question. Learned advocate Mr. Majumdar has thereafter, contended that Mamlatdar and ALT was empowered to initiate suo moto proceedings under Section 32(1B) of the Act against private respondents herein and no limitation is prescribed for initiation of suo moto proceedings under the aforesaid provisions. Learned advocate Mr. Majmudar would contend that provisions of section 32(1B) of the Act would be applicable because Shankerbhai Bhikhabhai was in possession of the land in question on the appointed date, who was dispossessed otherwise than the manner provided under Section 29 of the Act or any other provisions of the Act. Private respondents are successor in interest and therefore, suo moto proceedings was rightly initiated by the Mamlatdar and ALT. However, said authority has wrongly withdrawn notice and therefore, same was challenged before the Deputy Collector by filing appeal. Deputy Collector has rightly appreciated the facts and rightly held that proceedings under Section 32(G) of the Act are required to be initiated as petitioners are deemed purchasers. It is contended that Tribunal as well as learned Single Judge failed to appreciate aforesaid important aspect of the matter and therefore, said orders be quashed and set aside. Learned advocate Mr. Majmudar has placed reliance on following decisions in support of his submissions. "(a) Amrit Bhikaji Kale and Others v. Kashinath Janardhan Trade and Another reported in (1983) 3 SCC 437 . (b) Maneksha Beramsha v. Mochibhai Puniyabhai Khodo reported in 1994 (1) GLH 400 . (c) Hathisinh Madhavsinh v. Amarsinh Parvatsinh and another reported in 1994 (2) GLH 417 . (d) Ratilal Bhogilal Dave v. Dahyabhai Chaturbhai Baria reported in 1994 (1) GLH (UJ) 8." 5. On the other hand, learned Senior advocate Mr. Sanjanwala has supported the reasons recorded by the learned Single Judge and submitted that requisite conditions for the purpose of attracting the provisions contained in Section 32(1B) having not been found to be fulfilled and the original landlord being not in possession of the lands in question on the specified date, the Tribunal as well as learned Single Judge have rightly held that provisions of Section 32(1B) of the Act were not applicable to the facts of the present case. 5.1 Learned Senior advocate Mr. 5.1 Learned Senior advocate Mr. Sanjanwala has referred to Entry No. 1020 dated 05.03.1966 mutated in Village Form No. 6 - Record of right and submitted that in the said entry there is specific reference with regard to order dated 03.03.1966 passed by the Mamlatdar in RTS No. 416 of 1966 whereby the name of Shankerbhai Bhikhabhai has been deleted from second right (other rights). Learned Senior advocate submitted that the petitioners have not produced said order on record, however, the petitioners have placed on record communication wherein it has been stated that order is not available on record. It is therefore, contended that after following procedure prescribed under the provisions of the Act, tenant - Shankerbhai Bhikhabhai has surrendered his tenancy right and therefore, entry was made in the revenue record. Therefore, original land owner has sold the land by registered sale deed in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas. It is submitted that in the aforesaid registered sale deed, Shankerbhai Bhikhabhi has signed as witness. Thus, it is submitted that deceased Shankerbhai Bhikhabhai was aware about the fact of execution of sale deed by the landlord - Mirnuruddin Husseinkhan Nawab in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas. However, he has not raised any dispute with regard to same nor initiated any proceedings against the purchasers or original landlord. 5.2 Learned Senior advocate thereafter submitted that as per Rule 15A of the Gujarat Tenancy and Agricultural Rules, 1956 (hereinafter after referred as "the Rules" for short), application under section 32(1B) by the tenant shall be made within one year coming into force of the Amended Act, 1972. However, Shankerbhai Bhikhabhai has not initiated any proceedings within prescribed time limit and therefore, it is not open for petitioners to challenge the order passed by the Mamlatdar and ALT of withdrawal of notice before the Deputy Collector, action of the petitioners is nothing but afterthought. Learned senior advocate appearing for the respondents lastly contended that suo moto powers referred to in Section 32(1B) of the Act can be exercised by Mamlatdar and ALT within reasonable time, in absence of any time limit prescribed under the Act. However, in the present case such powers were exercised by the authority after a period of 23 years. Learned senior advocate appearing for the respondents lastly contended that suo moto powers referred to in Section 32(1B) of the Act can be exercised by Mamlatdar and ALT within reasonable time, in absence of any time limit prescribed under the Act. However, in the present case such powers were exercised by the authority after a period of 23 years. It is therefore, submitted that the Tribunal as well as the learned Single Judge have not committed any error while passing the impugned orders and therefore, this appeal be dismissed. Learned senior advocate has placed reliance on the decision rendered by the Hon'ble Supreme Court in the case of Joint Collector Ranga Reddy District and Another v. D. Narsing Roa and others reported in (2015) 3 SCC 695 . 6. We have considered submissions advanced on behalf of the learned advocates for the parties. We have gone through the materials produced on record and decisions on which reliance is placed by the learned advocates. 7. It transpires from the record that land bearing survey No. 240, 241 and 253 situated at Village Sama belonged to landlord Mirnuruddin Huseinkhan Nawab. Shankerbhai Bhikhabhai was occupying the said lands as protected tenant since 1951 - 52. He was in possession of the said lands till 1965. It is the case of the petitioners that Shankerbhai Bhikhabhai had become deemed purchaser of the lands in question. Thereafter, Entry No. 1020 was mutated in record of right on 05.03.1966 on the basis of order dated 03.03.1966 passed by the Taluka Mamlatdar in RTS No. 416 of 1966 whereby name of Shankerbhai Bhikhabhai was deleted from second right. After deletion of name of Shankerbhai Bhikhabhai, original landlord sold the lands in question by executing two different sale deeds in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas. After execution of sale deed, necessary entries were also made in the revenue record in favour of aforesaid two persons. After a period of more than 23 years, Mamlatdar and ALT initiated suo moto proceedings under section 32(1B) of the Act against original owners. 8. Thus, in this appeal it is required to consider whether provisions of Section 32(1B) of the Act is applicable to the facts of the present case or not and whether suo moto powers can be exercised after a period of 23 years or not? 8. Thus, in this appeal it is required to consider whether provisions of Section 32(1B) of the Act is applicable to the facts of the present case or not and whether suo moto powers can be exercised after a period of 23 years or not? For considering aforesaid questions, relevant provisions of the Act and Rules are required to be examined. Section 32(1B) of the Act read as under:- "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 nonagricultural use on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section 29 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 subsection 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 subsection (2) of section 32P. Explanation.- In this subsection, "successor in interest" means a person who acquires the interest by testamentary disposition or devolution on death." 8.1 Section 15 of the Act as it stood at the relevant time with regard to termination of tenancy by surrender provide as under:- "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. (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 subsection (1), hold an inquiry and decide whether the landlord is entitled under subsection (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 subsection (2), shall be liable to be disposed of in the manner provided under clause (c) subsection (2) of section 32D." 8.2 Rule 15A of the Rules provide as under:- "15-A. Period within which application under sub section (1-B) of section 32 shall be made - An application under sub section (1B) of section 32 by a tenant specified in that sub-section shall be made within a period of one year from the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972." 9. Keeping in mind aforesaid provisions of the Act and Rules, if aforesaid facts of the present case are examined, it is not disputed that Shankerbhai Bhikhabhai, predecessor-in-title of the petitioners was occupying the lands in question as tenant on the "appointed day" i.e. 15.06.1956 as referred in section 32(1B) of the Act. It is also not disputed that he was not in possession of the lands in question on the specified dated i.e. 03.03.1973 as referred to in the said provision. It is also not in dispute that name of Shankerbhai Bhikhabhai was deleted from the record of rights vide Entry No. 1020 which was certified as per order dated 03.03.1966 passed by the RTS Mamlatdar in RTS Appeal No. 416 of 1966. Thereafter, original landlord sold the lands in question to Laxmidas Zaverbhai and Shantibhai Laxmidas by two registered sale deed executed on 22.05.1967 in respect of which Entry No. 1216 and 1217 was mutated in favour of aforesaid persons on 27.11.1967. Thereafter, original landlord sold the lands in question to Laxmidas Zaverbhai and Shantibhai Laxmidas by two registered sale deed executed on 22.05.1967 in respect of which Entry No. 1216 and 1217 was mutated in favour of aforesaid persons on 27.11.1967. It is also not disputed that the petitioners have not initiated any proceedings within one year as stated in Rule 15A of the Rules after coming into force of the Amended Act, 1972. It is further not in dispute that Mamlatdar and ALT initiated suo moto proceedings under section 32(1B) of the Act after a period of more than 23 years after said entries were mutated in the revenue record and sale deeds were executed by the original owner/landlord. 10. Provisions of Section 32(1B) of the Act can be invoked if tenant was in possession of the lands in question on the appointed date; if he was dispossessed from such land by the landlord at any time before the specified date, 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. 03.03.1973 and if such land or part thereof was not put to non agricultural use on or before the said date. 11. In the present case as discussed herein above, it cannot be said that tenant was dispossessed from the lands in question by landlord at any time before the specified date, otherwise than in the manner provided under section 29 or any other provisions of the said Act. From Entry No. 1020 it is clear that Mamlatdar passed order on 03.03.1966 in RTS Appeal No. 416 of 1966 by which name of tenant Shankerbhai Bhikhabhai was deleted from second right. Said entry was never challenged. On the contrary Shankerbhai Bhikhabhai had put his signature as witness in two sale deed which were executed by the original owner - landlord in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas. He has never initiated any proceedings by alleging that he was wrongly dispossessed from the lands in question. Said entry was never challenged. On the contrary Shankerbhai Bhikhabhai had put his signature as witness in two sale deed which were executed by the original owner - landlord in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas. He has never initiated any proceedings by alleging that he was wrongly dispossessed from the lands in question. Thus, in view of aforesaid facts, we are of the view that in absence of any material on record it is difficult to hold that Shankerbhai Bhikhabhai was dispossessed by the landlord before the specified date as contemplated under section 32(1B) of the Act. 12. It is further clear from the explanation to section 32(1B) of the Act that "successor - in - interest" means a person who acquires the interest by testamentary disposition or devolution on death. In the present case as discussed herein above, original landlord executed sale deed in favour of Laxmidas Zaverbhai and Shantibhai Laxmidas on 22.05.1967. Thus aforesaid two persons acquired interest by testamentary disposition and therefore, said purchasers could not be said to "successor in interest" as per aforesaid explanation. Thus on the date of initiation of suo moto proceedings by the Mamlatdar, the landlord or his successor in interest being not in possession of the lands in question, the provisions contained in section 32(1B) of the Act were not applicable to the facts of the present case. 13. Another question which is required to be examined is whether Mamlatdar and ALT can exercise suo moto powers under section 32(1B) of the Act after a period of 23 years? It is true that there is no period of limitation prescribed for exercising suo moto power in the aforesaid section by the Mamlatdar and ALT. 14. However in the case of Joint Collector Ranga Reddy District (supra), the Hon'ble Supreme Court has observed and held in paragraph No. 25 and 31 as under:- "25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power revisional or otherwise such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period. ...xxx... 31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority." 15. Thus, in view of aforesaid decision of the Hon'ble Supreme Court, it can be said that though there is no period of limitation prescribed for exercising suo moto powers under section 32(1B) of the Act, such powers must be exercised within reasonable period. Unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It is well settled that the principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. In the present case, as discussed herein above, there is no explanation for exercising suo moto powers after a period of 23 years by Mamlatdar and ALT. In the present case, as discussed herein above, there is no explanation for exercising suo moto powers after a period of 23 years by Mamlatdar and ALT. It is only when Mamlatdar and ALT after initiating proceedings under Section 32(1B) of the Act had withdrawn notice, said order was challenged by the petitioners by filing appeal before the Deputy Collector, but the petitioners have never initiated proceedings before the Mamlatdar and ALT. Thus, we hold that suo moto powers can be exercised by the Mamlatdar and ALT under section 32(1B) of the Act within reasonable time. 16. Learned advocate Mr. Majmudar has placed reliance on the decision rendered by the learned Single Judge in the case of Mochibhai Puniyabhai Khodo (supra) in support of his submission that Section 32(1B) of the Act is a beneficial provision enacted with a view to protect the rights of illiterate and ignorant tenants who might have been duped by their lands contrary to the provisions of the Tenancy Act. Such tenants might skip the period of one year's limitation as provided by the statutory rules (Rule 15A of the Bombay Tenancy and Agricultural Land Rules, 1956). Aforesaid decision would not render any assistance to the petitioners in the facts of the present case. In the present case, the petitioner have not initiated any proceedings under Section 32(1B) of the Act but the Mamlatdar and ALT has initiated suo moto proceedings after a period of 23 years. 17. Learned advocate Mr. Majmudar has placed reliance on the decision in the case of Ratilal Bhogilal Dave (supra). However, said decision would not be applicable to the facts of the present case as in the present case name of the tenant has been deleted pursuant to order passed in RTS No. 416 of 1966 and entry to that effect mutated in the record of rights. 18. Similarly decision of the Hon'ble Supreme Court in the case of Amrit Bhikaji Kale (supra) relied by the learned advocate Mr. Majumdar is not applicable to the facts of the present case. Therefore, reliance placed by learned advocate Mr. Majmudar is misconceived. 19. In view of aforesaid discussion and in view of the reasons recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge while dismissing the petition and therefore, present appeal is required to be dismissed. Therefore, reliance placed by learned advocate Mr. Majmudar is misconceived. 19. In view of aforesaid discussion and in view of the reasons recorded by the learned Single Judge, we are of the view that no error is committed by the learned Single Judge while dismissing the petition and therefore, present appeal is required to be dismissed. Accordingly, the appeal is dismissed. Civil Application also stands disposed of.