SURSANGJI AMBARAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these petitions are directed against the judgment and order dated 7.8.2001 passed by a Division bench of the Gujarat Revenue Tribunal ("the Tribunal" for brevity) in Revision Application No.TEN.B.A.27/2001 under the provisions of Section 76 of the Bombay Tenancy and Agricultural Land Act, 1948 ("the Act" for brevity).

(2.) By the impugned judgment the Tribunal has set aside the judgment and order dated 25/10/2000 passed by Mr.S.G. Bharwad Deputy Collector (Land Reforms & Appeals), Ahmedabad in an appeal which was preferred after delay of 40 years against the order of the Mamlatdar passed in the year 1960.

(3.) Before setting out the facts leading to filing of the present petition and also the contentions raised, it is necessary to make a brief reference to the scheme of Section 43 of the Tenancy Act. The Tenancy Act is an Act to amend the law relating to the tenancy of Agricultural Lands and is basically a law for agrarian reforms. But for this Act, the tenants who were cultivating land for a number of years, would have continued to remain tenants and would never have become owners of the lands which they were cultivating for a number of years. Chapter III of the Act confers special rights and privileges on tenants and provisions for distribution of lands for personal cultivation. Para-II of the said chapter opens with Section 32 of the Act which states that on the first day of April, 1957 (tillers' day) every tenant shall be deemed to have purchased from his landlord, free of all encumbrances, the land held by him as tenant, if, such tenant is a permanent tenant thereof and cultivates land personally or even if such tenant is not a permanent tenant but cultivates the land leased personally and the landlord had not given notice of termination of tenancy under Section 31 or the landlord had not applied to the Mamlatdar before 31st March, 1957 for obtaining possession of the land on the ground of termination of tenancy or otherwise. There are various other provisions in Section 32 which are not relevant for the purposes of the present controversy. Section 32-G provides that as soon as may be after the the tillers' day the Agricultural Land Tribunal shall publish a public notice in each village calling upon all tenants who under Section 32 are deemed to have purchased the lands, all landlords of such lands and all other persons interested therein to appear before the A.L.T. on the specified date. The Tribunal shall also issue a notice individually to each such tenant, landlord and other interested persons and the A.L.T. shall record the statement of the tenant whether he is or he is not willing to purchase the land held by him as a tenant. If the tenant is willing to purchase, the A.L.T. shall, after giving an opportunity to the tenant, the landlord and other interested persons and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of Section 32-H and Section 63-A(3) of the Act. The purchase price to be paid by the tenants is much less than the market price - being only 20 times the land revenue assessment or 6 times rent of the land. This is obviously so because the Tenancy Act is a law for agragian reforms under which the tenants are given ownership in the lands; but this ownership is not absolute unrestricted ownership because the agricultural land is to be given to the tenant for personal cultivation. Hence Section 43 provides that the land purchased by a tenant under the aforesaid provisions shall not be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine. Sub-section (1A) of Section 43 further provides that such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government. By subsequent amendment made it was provided through Sub-section (1B) that these restrictions are not to be applied to a permanent tenant, if, prior to purchase, the permanent tenant held a transferable right in the tenancy of the land. Sub-section (2) provides that any transfer or partition in contravention of subsection (1) shall be invalid. Under the aforesaid provisions of Section 43, the State Government issued instructions from time to time lying down the conditions for granting permission under subsection (1) of Section 43. In cases where the restrictions under subsection (1) of Section 43 are applied, the land is known as new tenure land. In cases where such restrictions are not applied the land is known as old tenure land. Hence, if any land is purchased by tenant under the aforesaid provisions of the Tenancy Act, he can not sell the land without prior permission of the Collector, but he would have to apply to the Collector for such permission. He would have to specify the purpose for sale and the purpose for which purchaser would utilise the land. Since the tenant was given the advantage of purchasing the land at a very low cost, whatever profits he would derive on selling the land, he would be required to share the same with the society because he was granted the land at a throw away price for his personal cultivation. The State Government accordingly issued instructions laying down how to determine the profit being made by the tenant turned purchaser. The part of the price to be paid by the seller to the State Government is known as premium. Therefore the premium would have to be paid for selling a new tenure land to another person even as a new tenure land. While applying for the permission, the permission could also be sought for converting the new tenure land into old tenure land, which would free the land from all restrictions under Section 43 of the Act. For converting the new tenure land into old tenure land, the premium would be much higher. Keeping this scheme of Section 43 of the Tenancy Act in the mind, the Court proceeds to set out the facts.