KANAIYALAL NATHUMAL HEMRAJANI Vs. ALT AND MAMLATDAR

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is filed by the petitioners praying for quashing and setting aside the show-cause notices dated 20.01/02.2020 and 02.06.2020 issued by the Agricultural Lands Tribunal and Mamlatdar, Godhra in Tenancy Case No.1 of 2020. Challenge to the issuance of show-cause notice is mainly on the ground of lack of jurisdiction of the ALT and Mamlatdar to issue such show-cause notice under Section 84B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Act").

(2.) Learned advocate Mr. Y.M.Thakkar appearing for the petitioners submitted that initially the petitioners were issued notice under Section 84B of the Act on 20.01/02.2020. Thereafter, no further proceedings took place probably on the ground of the Covid Pandemic and thereafter, again the same show-cause notice was reiterated vide show-cause notice dated 02.06.2020. Learned advocate submitted that the proceedings initiated under the show-cause notice for the breach of Sections 63 and 64 of the Act. Learned advocate submitted that Section 84B of the Act empowers the Mamlatadar to issue notices and hold appropriate inquiry. In the present case, inquiry was pertaining to the fact as to whether the petitioners are agriculturists or not. Such inquiry is within the domain of the Mamlatdar, whereas the ALT and Mamlatdar has assigned separate and distinct duties. The provision relevant for the functioning of the ALT is provided under Sections 67, 68 and 69 of the Act, which do not include the inquiry to be undertaken to conclude whether a person is an agriculturist or not and therefore, the show-cause notice issued by the ALT and Mamlatdar is without jurisdiction. [2.1] Learned advocate submitted that Section 70 of the Act pertains to duties of the Mamlatdar and Sub-Clause (a) pertains to decision whether person is an agriculturist or not and therefore, this aspect is within the exclusive jurisdiction of a Mamlatdar. Learned advocate further submitted that the provisions of Section 84 of the Act read with Rule 50 of the Bombay Tenancy and Agricultural Land Rules, 1956 provides for of prescribed form of notice. Learned advocate draws attention of this Court to the rules and the form of notice prescribed under the Rules. It is submitted that even the notice impugned is not as per the prescribed form and hence also the same is required to be set aside. Learned advocate has then relied upon the decision in the case of Bhikhabhai Jethabhai vs. J.V.Vyas, Additional Collector , 1963 GLR 873 and submitted that the issue was to decide whether the noticee was tenancy of the land or not and considering such question upheld, the submission of the petitioners that only sections in the tenancy Act which deal with the jurisdiction of procedure of transfer are Sections 67 to 69, whereas the person is a tenant or not within the jurisdiction of the Mamltadar under Section 70B of the Act and therefore, whenever such question arises, it is not the Tribunal which can decide such question that has to be decided by the Mamlatadar. Learned advocate has thereafter, relied upon the decision in the case of Chandrakishor Jha v/s. Mahavir Prasad,1998 8 SCC 266 to contend that if a statute provided for thing to be done in a particular matter then it has to be done in that manner only and not in other manner.

(3.) As against this, learned Assistant Government Pleader Mr. Dhawan Jayswal appearing for respondent No.1 opposes the petition by referring to the affidavit-in-reply and additional affidavit-in-reply of the respondent No.1 mainly contending that power to be exercised with regards to Section 84B is not to be read in isolation and that to be read alongwith Sections 84A and Section 84C of the Act and for this purpose, he refers to the provisions of Section 70(mb) of the Act which pertains to issue a certificate under Section 84 of the Act and to decide under Sections 84B and 84C whether a transfer or acquisition of land is invalid and to dispose of land as provided in Section 84C. Section 84B of the Act provides for certain transfer made between appointed being day and commencement of the Amending Act, 1955 invalid, whereas Section 84C of the Act provides for disposal of land acquisition of which is invalid. Learned AGP submitted that in view of the aforesaid provision particularly Section 84C, the ALT, Mamlatdar derives power to perform its duties and functions to resolve the issues involved as to the provisions of the Act and therefore, to correct and verify the correctness of the transfer of agricultural land, the ALT was within his jurisdiction to issue the impugned show- cause notice. It is submitted that the Government Resolution dated 21.06.2011 of the Revenue Department, wherein the establishment of the Mamlatdars across the State of Gujarat was approved and their respective area of operation and functions were finalized which included the functions and performance of duties under the provisions of Gujarat Tenancy and Agricultural Lands Act.