PATEL SHANABHAI VITHALBHAI Vs. PATEL BAKORBHAI VITHALBHAI

JUDGEMENT

(1.) An interesting question relating the interpretation of Ss. 32 and 32-G of the Bombay Tenancy and Agricultural Lands act, hereinafter referred to as the "Tenancy Act" which does not appeal to have been debated so far clamours for solution in this petition under Article 227 of the Constitution of India at the instance of a tenant who, according to the landlord, was dispossessed without due authority of law 3 days before the tillers' day (April 1. 1957). The proposition has been canvassed on behalf of the landlord that if on the tillers' day the tenant was not in actual physical possession, he is not entitled to the benefit of Sections 32 and 32-G of the Tenancy Act notwithstanding the fact that the landlord had obtained possession of the land in question without due authority of law and even if the tenancy has not been lawfully terminated. The proposition canvassed by the landlord has found favour with the Revenue Tribunal and that has provided the tenant with the occasion to approach this Court by way of the present petition.

(2.) A few facts may be stated. The dispute relates to S. Nos. 444, 445 and 446 situated within the limits of village Sonia in the Thasra Taluka of Kaira District. It is not in dispute that the petitioner was a lawful tenant holding the land on lease from the landlord from about 20 years before the tillers' day. According to the landlord the tenant voluntarily handed over possession of the said lands to him on December 28, 1956 i.e., 3 days before the tillers' day. According to the tenant he was forcibly dispossessed subsequent to the tillers' day but before January 20, 1959. Soon after the tillers' day proceedings were initiated by the Mamlatdar. Thasra, under S. 32-G of the Act inasmuch as the petitioner was admittedly a tenant in respect of the land in question on April 1. 1957. In the course of the proceeding the petitioner made a statement on January 20, 1959 that he wanted to purchase the land and that he was willing to pay the price before the authorities under the Tenancy Act. He also made a statement that he was in possession of the land upto 1958, (see paragraph 2 of the judgment of the Gujarat Revenue Tribunal). The statement of the landlord was also recorded on the same day. He deposed that the tenant was cultivating the land for the last 7 years but that before the date of giving evidence he had obtained the possession without approaching the Mamlatdar and the lands were in his possession (vide paragraph 2 of the judgment of the Gujarat Revenue Tribunal). Though the tenant expressed his willingness to purchase the land in 1959, the Mamlatdar instead of passing an appropriate order appears to have shelved the matter. Two years later, though nothing remained to be done save fixing the purchase price, on April 23. 1961 for inexplicable reasons he issued fresh notices to parties instead of proceeding to pass orders in accordance with law. It is stated that in response to this notice the petitioner declared that he did not want to purchase the lands. Thereupon on April 29. 1961 the Mamlatdar recorded an order holding that the sale had become ineffective on account of the tenant's refusal to purchase the land. The petitioner filed a review application against the said order on October 21. 1961 on the ground that he had already expressed his willingness to purchase the land on January 20, 1959 and that, therefore, the order for fixing the sale - price should follow and that there was no occasion for holding a fresh proceeding in 1961 to reascertain his willingness. This application was rejected by the Mamlatdar on May 4, 1962. Thereupon the petitioner filed an appeal to the Court of the Deputy Collector. The Deputy Collector allowed the appeal by his order dated May 9, 1962 and remanded the matter to the Mamlatdar to decide it in accordance with the statement made by the petitioner on the first occasion which alone was relevant. The landlord thereupon appealed to the Gujarat Revenue. Tribunal by way of Tenancy Application No. 617 of 1962. The Tribunal allowed the revision partially on the ground that the Deputy Collector had not decided the question whether the appeal preferred before him was within time. The Deputy Collector was directed to first decide the question whether the appeal was within limitation and then to proceed to disposed of the appeal in accordance with law. The matter thus went back to the deputy Collector. He formed that opinion that the appeal was within time and, therefore. Remanded the matter to the Mamlatdar for deciding the question in accordance with the first statement made by the petitioner. The Mamlatdar in stead of deciding the matter on the basis of the first statement made by the petitioner as directed by the Deputy Collector allowed the landlord to raise a new contention by an application dated October 27, 1964. The contention was that possession of the land was handed over by the tenant to the landlord 3 days before the tillers' day and that therefore he had ceased to be a tenant. The Mamlatdar granted the request and raised the issue as to whether the applicant was in possession of the lands on the tillers' day (April 1, 195) as a tenant. On October 14, 1965 the Mamlatdar passed the order Annexure "A". He came to the conclusion that the petitioner was not in possession on April 1, 1957 and that the proceedings under Section 32-G must stand terminated. The petitioner carried the matter by way of Appeal No. 232 of 1965 to the Deputy Collector at Kaira. The Deputy Collector dismissed the appeal on his taking the view that as the evidence supported the finding that the petitioner was not in possession of the land on the tillers' day he was not entitled to become a deemed purchased. The petitioner preferred a revision application being Application No. TEN. A. 624/67. The Tribunal by its judgment and order dated February 29, 1968 rejected the petition on taking the view that the question as to whether the petitioner was or was not a tenant was not open any more, yet, inasmuch as the petitioner was not in possession on the tillers' day (April 1, 1957), he was not entitled to claim the benefit of Section 32 and 32-G of the Tenancy Act.

(3.) The learned counsel for the petitioner has urged the following points in support of the petition :-