BIJALBHAI RANCHHODBHAI BIN JAGABHAI VAGHRI Vs. USMANMIYA RASULMIYA

JUDGEMENT

(1.) The petitioner challenges the decision of the Gujarat Revenue Tribunal dt. 1/09/1983 in Revision Application No. TEN/BA/1344/82 and 1389/82 dismissing the Revision Application, which was preferred against the order of the Dy. Collector, Anand dt. 28-6-82 and allowing the Revision Application preferred by the landlord against he said order, which he had remanded the matter and holding that there was no need for the Dy. Collector to remand the matter because the purpose of the lease was of growing fruits in the land in question which attracted the provisions of s. 43A(1) (B) of the Bombay Tenancy and Agricultural Land Act.1948 (hereinafter referred to as the Act)

(2.) The land in question admeasuring 1 acre and 12 gunthas of survey no. 350 is situated in village Valssan if Taluka: Anand, District: Kheda. The petitioner made an application under section 70(b) of the act on 4-9-81 to the Tenancy Mamlatdar, Anand contending that there was a tenancy agreement between the landlord and the father of the petitioner in the year 1948 pursuant to which the land was being cultivated by the petitioner's father and after his death, by the petitioner. It was contended that the petitioner was cultivating the land as a tenant on crop share basis since many years. The Mamlatdar and ALT by his order dt. 20-3-93 found that the petitioner had failed to prove his claim of tenancy and therefore, ordered his application to be filed. The appeal filed by the petitioner before the Dy. Collector setting aside the order of the Mamlatdar, remanded the matter by his order dt. 28-6-82. The order of remand made by the Dy. Collector was challenged by both parties before the Tribunal invoking its revisional jurisdiction. The Tribunal constructing the lease deed dt. 27-5-48 held that it was a lease for growing fruits bearing trees as well as for cultivation of crops. Finding that the purpose of the original lease was of growing Guava trees, the Tribunal resorted to the provision of S. 43A (1)(b) and relying upon the decision of this court in Shantilal Ratanji v. Mangubhai, reported in 10GLR 500 held that any subsequent use for cultivation of the land which was originally granted for the purpose for growing fruits was wholly immaterial. It was held that in view of he settled legal position, there was no need for remanding the matter of the Mamlatdar as was done by the Dy. Collector.

(3.) From the material on record, it appears that in his application under section 70(b) of the act, the petitioner had claimed to be a tenant of the disputed land. It was averred by him that he was cultivating the land on crop share basis after the death of his father, who earlier in the year 1948 was leased out the land under a lease agreement. According to the petitioner, he was cultivating the land since many years. It appears that for the first time before the Dy. Collector (Appeals), a contention was raised on behalf of the respondent landlord that Section 43A of the act was applicable to the present case. The question whether section 43A of the act was applicable was not raised before the Mamlatdar of the landlord. If the question as to the applicability of section 43A was raised before the Mamlatdar, then the petitioner would have led evidence to show that the original contract was departed from or that the purpose was revise. It could have been demonstrated before the Mamlatdar that the landlord had allowed cultivation of the land on crop share basis as was contended by the petitioner in his application. The Dy. Collector, realising this aspect, had directed that the matter be remanded since the question regarding applicability of section 43A was raised for the first time before that appellate forum. The Tribunal seems to have proceeded on the footing that once, if in the original lease, a certain purpose was indicated, it can never be changed thereafter. The Tribunal has overlooked the aspect that the original purpose can always be revised and the landlord may allow the tenant to cultivate the land for agricultural purpose, though originally the lease was for the purpose of growing fruit trees. Under section 43A(1)(b), it is inter alia provided that the provisions enumerated therein shall not apply to lease of land granted for growing of fruits. Section 43A(1)(b) reads as follows: