MANGALBHAI FULABHAI NAI Vs. PARSHOTTAM GARBADBHAI PARMAR

JUDGEMENT

(1.) Both these Special Civil Applications have been referred to a Division Bench. Special Civil Application No. 1393/1967 has been referred by M. P. Thakkar J. and Special Civil Application No. 1621/1970 has been referred by S. H. Sheth J. Both these Special Civil Applications raise a common question of law viz. whether the heirs of a certified landlord to whom the certificate hasbeen issued under sec. 88C of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) can file or continue proceedings under sec. 32T of the Act for the purpose of obtaining possession from the tenant. On February 4 1971 M. P. Thakkar J. referred Special Civil Application No. 1393/1967 because in his view there was an apparent conflict between two decisions of J. B. Mehta J. which have a direct bearing on the main question which arises for determination. The two decisions are (1) Spl.C.A. 1043/1964 decided on June 25 1969 (Naranbhai Bajidar v. Girdharlal) and (2) Chanchalben v. Gujarat Revenue Tribunal 12 G L R. 428. The order of reference to a larger Bench was passed by S. 14. Sheth J. on March 15. 1971 when he found that the same question was referred by M. P. Thakkar J. to a larger Bench.

(2.) Before taking up the discussion regarding the legal point arising in the case it will be appropriate to refer to the facts of each Special Civil Application. In Special Civil Application No. 1393 of 1967 the original petitioner in this High Court was one Mangalbhai Fullabhai whose father Fulabhai Ambaidas was the original landlord and Fulabhai had obtained a certificate of exemption under sec. 88C of the Act the certificate was issued to Fulabhai on May 6 1959 and later on Fulabhai died on September 28 1959 During the pendency of the Special Civil Application filed by Mangalbhai in this Court Mangalbhai expired and subsequently his heirs and legal representatives have been brought on the record of this case. Mangalbhai applied for possession under sec. 32T of the Act on March 3 1962 and before that date he had served the original tenant Garbadbhai with a notice to quit on December 19 1961 The Mamlatdar Petlad who tried the case held in favour of Mangalbhai and awarded possession to him. The tenant died during the pendency of the proceedings before the Mamlatdar and his heirs and legal representatives came on the record and the heirs of the original tenant preferred an appeal against the order of the Mamlatdar. The appeal was disposed of by the Deputy Collector Kaira who allowed the appeal and set aside the order of the Mamlatdar. Against the decision of the Deputy Collector Mangalbhai went in Revision to the Gujarat Revenue Tribunal and the Revenue Tribunal held that the certificate of exemption having been obtained by Fulabhai the deceased father of Mangalbhai the latter i.e. Mangalbhai could not maintain an application for possession under sec. 32T of the Act as he was not the certified landlord. The present Special Civil Application No. 1393/1961 has been filed against this decision of the Revenue Tribunal.

(3.) The facts in Special Civil Application No. 1621/70 are that the petitioner before the High Court is a tenant and the respondent Bai Manguben is the widow of one Chimanlal Kishorbhai who prior to his death was the landlord of the petitioner. The lands admeasuring 4 acres and 12 gunthas in all were leased by Chimanlal to the petitioner. Chimanlal died on March 24 1964 and he had applied for an exemption certificate under sec. 88C of the Act and the certificate had been granted to him on September 30 1958 Chimanlal prior to his death applied for possession of these lands under sec. 32T of the Act. That application was made on March 23 1962 The Mamlatdar had awarded possession of one of the two S. Nos. comprising the lands of the tenancy to the landlord. The petitioner appealed against the decision of the Mamlatdar. The appeal was heard by the Prant Officer Kaira and the Prant Officer had remanded the matter back to the Mamlatdar. After the remand the Mamlatdar again awarded all the lands to the landlord and after that order the petitioner went in appeal which was disposed of the Deputy Collector Kaira. The appeal was dismissed by the Deputy Collector. Thereafter the petitioner went in revision before the Gujarat Revenve Tribunal and the Tribunal dismissed the Revision Application. Special Civil Application No. 1621 of 1970 has been filed by the petitioner against this order of the Gujarat Revenue Tribunal.