KALABHAI Vs. TARABEN WD O GORDHANBHAI MANGALBHAI

JUDGEMENT

(1.) The petitioner (since deceased) has challenged the order of the Gujarat Revenue Tribunal passed in Revision Application No. TEN. B. A. 400 of 1979 on 28-9-1979 by which the Tribunal had allowed the Revision Application and set aside the orders of the ALT-Mamlatdar, Baroda and the Deputy Collector holding that the petitioner was the tenant of the lands in dispute. The Tribunal upheld the preliminary objection that the enquiry was incompetent under Sec. 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the said Act').

(2.) The ALT-Mamlatdar had started an enquiry under Sec. 32G of the said Act and on the basis of the evidence on record he came to the conclusion that the petitioner who was a Schedule Caste person was a tenant of the land bearing Survey Nos. 462, 507 and 508 of Village Kapuria and was deemed to have purchased the land on Tillers' Day, i.e. 1-4-1957. The Deputy Collector Vadodara, upheld the order of the ALT-Mamlatdar by his decision dated 30/09/1978 holding that the finding of the Mamlatdar that the petitioner was the tenant of the disputed land was proper. The respondents Nos. 1 to 7 challenged the order of the Deputy Collector before the Gujarat Revenue Tribunal by way of revision and the Tribunal observing that the arguments were heard only on the preliminary objection and not on the merits of the case, allowed the Revision Application holding that there was no justification for the ALT to start the suo motu enquiry under Sec. 32G of the said Act because the land was lying uncultivated and the name of the petitioner or his father was not entered in the village record. The Tribunal held that it was not the intention of the Legislature that at any period of time the ALT can start the suo motu enquiry under Sec. 32G of the Act without verification of the record of rights of that relevant period. The Tribunal held that the ALT had converted the enquiry into an enquiry under Sec. 70(b) of the said Act. The Tribunal held that the tenancy can only be decided when the name of the claimant figures in the record of rights and some other person or the landlord challenges that tenancy. The Tribunal held that a person who has never figured in the relevant record cannot claim tenancy under Sec. 32G and Sec. 70(b) was the only appropriate provision for such type of cases. The Tribunal held that only after the petitioner was declared a tenant under Sec. 70(b) that the enquiry under Sec. 32G would be competent and can be started. The Tribunal therefore held that the enquiry was without jurisdiction and perverse and set aside the orders of the ALT-Mamlatdar and Deputy Collector.

(3.) Mr. P. B. Majmudar, the learned Advocate appearing for the petitioner contended that the name of the petitioner appeared in the record in respect of Survey No. 507 in the years 1951-52 and 1952-53 and it also appeared again from the year 1970 onwards in respect of all three survey numbers. Mr. Majmudar submitted that it was open to the ALT-Mamlatdar to consider the entire evidence including the oral evidence adduced before him for coming to the conclusion whether the petitioner was the tenant or not in the enquiry under Sec. 32G of the said Act. Mr. Majmudar also contended that even though the Tribunal had heard the arguments only on the preliminary objection and not on the merits of the case, it had made observations on the aspect whether the petitioner was having interest in the land as on 1-4-1957. He argued that the Tribunal had misdirected itself in law by holding that enquiry under Sec. 32G cannot be held in absence of an entry in record of rights. He also submitted that the Tribunal had committed an error in proceeding on the footing as if the provisions of Sec. 70(b) were independent of the provisions of Sec. 32G and as if different enquiries were contemplated by these two provisions.