DHADHAL SURAGBHAI KALABHAI Vs. SONI VINODCHANDRA PRANLAL

JUDGEMENT

(1.) K. T. DESAI C. J.

(2.) THE petitioners are the barkhalidars of the village Anandpur. Respondent No. 1 was their tenant. He was allotted six acres and ten gunthas of bagayat lands called Bhadwadi under the provisions of the Barkhali Abolition Act 1951 Under the provisions of section 8 sub-section (2) (a) of the Act the petitioners had a right of pre-emption in respect of the said lands in the event of the first respondent desiring to sell or lease the said lands. On 28th October 1958 the first respondent sold the aforesaid lands to respondent No. 2 for Rs. 3000 under a registered deed of sale without giving the first option to the petitioners to purchase the same. THEreupon on 18th December 1958 the petitioners applied to the Deputy Collector of Wadhwan under the provisions of the aforesaid section 8(2) (a) and section 38 and Rules 82 and 82B framed under the aforesaid Act for the summary eviction of the second respondent and for handing over the possession of the said lands to the petitioners. THE first respondent contended that the petitioners had waived their right of pre-emption to purchase the said lands. That contention was negatived by the Deputy Collector. He held by his judgment and order dated 31st August 1959 that the petitioners had a right-of pre-emption in respect of the said lands that the first respondent-had not given any opportunity to the petitioners to exercise that right and to purchase the said lands. He ordered respondent No. 2 to be summarily evicted from the lands in question under the provisions of section 3B of the aforesaid Act read with rule 82A(2) of the Rules framed under the aforesaid Act. He held that in the result the land reverted back to the first respondent and that he was free to sell it as provided in Chapter V of the Saurashtra Barkhali Abolition Rules. Prom the aforesaid decision the petitioners as well as the second respondent went in revision before the Bombay Revenue Tribunal THE Revenue Tribunal was of the view that the Deputy Collector had rightly held that as the provisions of section 8(2) (a) and the rules thereunder had been contravened the sale in favour of the second respondent was void and that the land should revert to the first respondent who had sold it. THE Revenue Tribunal by its order dated 30th November 1959 dismissed both the revision applications. THE petitioners have come before us praying that the aforesaid orders should be quashed and that a writ direction or order should be issued against the Revenue Tribunal and the Deputy Collector or either of them ordering them to direct the Mamlatdar of Chotila to fix the price of the aforesaid lands. Mr. Nanavaty the learned advocate for the petitioners strongly relied upon the provisions of section 8(2) (a) of the aforesaid Act which run as under : THE Barkhalidar in respect of land allotted to him for personal cultivation under sub-section (1) and the tenant in respect of land allowed to remain in his possession under the said sub-section shall have a mutual right of pre-emption for ten years for lease or sale at a price to be determined by the Mamlatdar under the rules made under this Act. It is not disputed before us that the lands in question were allowed to remain in the possession of the first respondent as the tenant of the aforesaid lands under the aforesaid sub-section (1) and that under the said section the petitioners as Barkhalidars would have a right of preemption. By section 36 of the aforesaid Act the Saurashtra Government was empowered by notification in the official gazette to make rules for carrying out the purposes of the Act. In exercise of the powers conferred by section 35 of the aforesaid Act and of other enabling powers the Saurashtra government framed certain rules. By rule 76 it is provided as under: 76 (1)-Where a Barkhalidar or a tenant intends to lease or sell his occupancy holding at any time within ten years the Barkhalidar or tenant as the case may be shall give notice in writing to the tenant or Barkhalidar requiring him to state within three months from the date of service of such notice whether he is willing to keep on lease or purchase the holding. (2) if within the period of three months so specified the tenant or the Barkhalidar intimates in writing that he is willing to keep on lease or purchase the holding the Barkhalidar or tenant as the case may be shall make an application in Form XIII to the Mamlatdar for the determination of price of the lease or sale. From this rule it appears that where a tenant intended to sell his occupancy holding he had to give a notice in writing to the barkhalidar requiring the barkhalidar to state within three months from the date of the service of the notice whether the barkhalidar was willing to purchase the holding. If the barkhalidar intimated to * * * * 78 the purpose of determining the price the Mamlatdar shall take into consideration one or more of the following factors THE price shall be computed on the market value of such or similarly situated land or