MADHAJI LAKHIRAM Vs. MASHRUBHAI MAHADEVBHAI RABARI

JUDGEMENT

(1.) Two questions arise for decision by this Full Bench. The first is whether a decision given by an appellate authority under subsection (5) of section 88C of the Bombay Tenancy and Agricultural Lands Act 1948 (hereafter called the Act) is or is not subject to revision under section 76 of the Act by the Gujarat Revenue Tribunal. The second is whether total income of the petitioner for disposing of his application for an exemption certificate made under sub-section (2) of section 88C of the Act is to be computed under the circumstances of the case from the year beginning from 1st April 1956 and ending with 31st March 1957 or the year beginning from 1st September 1958 and ending with 31st August 1959.

(2.) At first it will be convenient to mention a few facts which led up to the writ petition in which the questions arise for decision. Petitioner Madhaji Lakhiram is the owner of a land bearing survey No. 610 admeasuring 9 acres 26 gunthas situated in the village Nayta. Opponent No. 1 Mashrubhai Mahadevbhai Rabari (hereafter called the opponent simpliciter) is the tenant of the land. Petitioner filed before the Mamlatdar Taluka Patan Tenancy Suit No. 375 of 1957 under section 29 sub-section (2) read with section 31 of the Act to recover possession of the land on the allegations that he had duly terminated the tenancy and that he required the land for personal cultivation. The suit was dismissed on 1st November 1957 by the Tenancy Mahalkari. Petitioner preferred to the Prant Officer Patan Appeal No. T. N. C. A. P. L. 133 of 1957. The appeal was dismissed on 5th July 1958. A revision petition was presented to the Bombay Revenue Tribunal and it was dismissed by it on 31st August 1959 Whilst these proceedings were pending petitioner started a second set and this writ petition is directed against two orders passed in the course of this second set of proceedings. In 1958 petitioner filed before the Additional Mamlatdar Patan an application No. 393 under sub-section (2) of section 88C of the Act for an exemption certificate on the allegations that his estate did not exceed an economic holding and that his total annual income did not exceed Rs. 1 500 That application was dismissed by the Additional Mamlatdar by his order dated 6th December 1958 He found that the total annual income of the petitioner exceeded Rs. 1 500 This income was calculated on the basis that the relevant year began on the 1st April 1956 and ended on the 31st March 1957. Petitioner preferred to the Additional Deputy Collector (Appeals) Mehsana Appeal No. 250 of 1959. The appeal was allowed by him by his order dated 24th April 1959. Before doing this that officer had allowed petitioner to lead additional evidence in regard to his total annual income; but he had not allowed the opponent opportunity to rebut that additional evidence. The officer found that the total annual income of petitioner during the year 1956-57 was less than Rs. 1 500 and that his total estate was less than an economic holding. Prom the above order opponent preferred a revision application being No. T. E. N. A. A. 898 of 1959 to the Bombay Revenue Tribunal. Before the Tribunal petitioner raised the question as to the year with reference to which his total annual income was to be calculated. The Tribunal held that the relevant year was 1956-57. However the learned Advocate for petitioner conceded before the Tribunal that in view of the fact that opponent had not been given an opportunity to rebut the additional evidence led by petitioner and permitted by the appellate authority the appeal should be remanded. Accordingly the Bombay Revenue Tribunal set aside the order dated 24th April 1959 of the Additional Deputy Collector on 7-11-59 and remanded the appeal directing that it should be decided in the light of its judgment and in accordance with law after the opponent was given an opportunity to lead rebuttal evidence. Accordingly the matter went before the Additional Deputy Collector. That officer held by his order dated 30th of April 1960 that in the year 1956-1957 the total annual income of the petitioner exceeded Rs. 1 500 and on that ground he dismissed the appeal and confirmed the order dated 6th December 1958 of the Additional Mamlatdar. On 17th June 1960 a Division Bench of this High Court consisting of the then Chief Justice Mr. S. T. Desai and myself decided in Dahyaji v. Dahiben I Guj. L. P. I that a decision of the Mamlatdar under sub-section (3) of section 88C was not subject to revision by the Revenue Tribunal and that similarly an order passed in appeal from such a decision was also not subject to revision by the same tribunal. Petitioner says that because of this decision he was prevented from approaching the Gujarat Revenue Tribunal for redress of his grievance against the order dated 30 of April 1960 of the Additional Deputy Collector and therefore he filed the present writ petition on 21st July 1960. This writ petition is directed not only against the order dated 30th of April 1960 of the Additional Deputy Collector but also against the order of remand dated 9th November 1959 passed by the Bombay Revenue Tribunal in Revision Application No. T. E.N.A. A. 898 of 1959. Petitioner prays that both the above orders should be quashed on the ground that having regard to the decision of this High Court referred to above the Bombay Revenue Tribunal had no jurisdiction to revise the order of the Additional Deputy Collector in appeal No. 250 of 1959 and to set it aside and to remand the proceeding for further disposal and that as a consequence the order dated 30th April 1960 passed by the Additional Deputy Collector after the remand was equally without jurisdiction. This revision petition was entertained and a rule was issued by this Court. The opponent opposes the writ petition. The matter cane up for hearing before a Division Bench consisting of My Lord the Chief Justice and Mr. Justice Raju. The learned counsel for the opponent argued before that Division Bench that the decision in Dahyaji Kalaji Parmar v. Dahiben wife of Ishwarlal R. Vyas and others reported in Gujarat Law Reporter 1 was not correct and that a number of relevant provisions was not referred and was not considered in that decision. The Division Bench felt that prima facie there was force in the contention of the learned counsel for the opponent. Accordingly, the learned Chief Justice directed that the matter be placed before a Full Bench of this Court for final decision. That is how the writ petition comes up for disposal before this Full Bench.

(3.) In order to appreciate the rival arguments on the first point it is necessary to reproduce in full section 88C of the Act as it existed on 30 of April 1960. It is as follows: