NAVRANGPURA GAM DHARMADA MILKAT TRUST Vs. RAMTUJI RAMAJI

JUDGEMENT

(1.) This petition filed under Arts. 226/227 of the Constitution of India by a Public Trust registered under the provisions of Bombay Public Trusts Act, raises an interesting question of law as regards applicability of the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Tenancy Act', to the areas or parcels of lands which are included in the draft/final Town Planning Scheme prepared under the Gujarat Town Planning and Urban Development Act, 1976, hereinafter referred to as 'Gujarat T. P. Act'. This petition also challenges the legality and validity of the judgment and order of Gujarat Revenue Tribunal passed in Revision Application No TEN. BS/129 of 1990 and 221 of 1990, dated 11/01/1991 thereby confirming the judgment and order of the Deputy Collector in appeal, who in his turn confirmed the judgment and order of the Agricultural Lands Tribunal in Tenancy Case No, 22 of 1988, dated 16/12/1989.

(2.) At the outset, we must mention that though principally the petition seeks to challenge the order passed by the Guj. Revenue Tribunal in exercise of its revisional powers under Sec. 76 of the Tenancy Act, submissions in the course of hearing before this Court were placed on a wider canvas inasmuch as this Court was invited to various provisions of the Tenancy Act. as well as Guj. T. P. Act so as to decide the question as to whether and under what circumstances the provisions of the Tenancy Act would not apply to the areas which fall within the Town Planning Scheme under the Gujarat T. P. Act. In view of the amplitude of the submissions made by the learned Counsel appearing at the Bar on behalf of the petitioner as well as respondents we are called upon in this petition to decide a wider question. While undertaking that exercise we have also to keep in mind the fact that in substance and in reality this petition is filed under Art. 227 of the Constitution of India and therefore the findings of fact reached by the three tribunals concurrently cannot be and shall not be interferred with by this Court lightly unless any of such findings is shown to be patently perverse so as to suggest that no reasonable tribunal could have reached such findings on the facts as existing before it.

(3.) With the aforesaid introductory statement, we now proceed to state chronologically the facts as found by the tribunals which have given rise to present proceeding before us. They are as follows : (I) The petitioner-Trust is the owner of parcel of land bearing S. No. 75/2 situated at Shekpur-Khanpur admeasuring 1 Acre and 3 Gunthas. The said parcel of land was in the possession of deceased Ramaji Adaji on 1-4-1957. i. e.. Tillers' day. (II) The said parcel of land came to be included in the area of Municipal Corporation of the City of Ahmedabad by Notification, dated 13- 8-1958. (Ill) The Ahmedabad Municipal Corporation thereafter declared its intention to make a Town Planning Scheme, Ahmedabad-19 (Memnagar) under sub-sec. (1) of Sec. 22 of Bombay Town Planning Act, 1954, and accordingly, draft Town Planning Scheme No. 19 was prepared and published under sub-sec. (1) of Sec. 23 of the Town Planning Act, 1954. In such draft scheme the land in question being S. No. 75/2 came 10 be included and it was allotted Final Plot No. 177. The said draft Town Planning Scheme No. 19 has become; final on 19/12/1965 and the land in question is allotted Final Plot No. 177. Since the Town Planning Scheme has become final, and the laud in question is alloted Final Plot, it is required to be seen by this Court as to whether the provisions of Bombay Tenancy Act would apply to said parcel of land. (IV) The proceedings under Sec. 32(g) with respect to this very parcel of land were initiated. While Mamlatdar and Agricultural Lands Tribunal in Case No. 8 by judgment and order, dated 29/07/1961 decided to drop the proceedings under Sec. 32(g) of the Bombay Tenancy Act as this parcel of land came to be included within the limits of Ahmedabad Municipal Corporation and since it was then squarely covered by the decision of Bombay High Court in the case of Jasin Tomu Darnel v. Harischandra Pandurang Muranjan, reported in 1961 0 BLR 1112. It appears that because of this binding decision of Bombay High Court as well as of Gujarat Revenue Tribunal in Tenancy Appeal No. 40 of 1960, dated 15/12/1960 Mamlatdar and A.L.T. found that in view of inclusion of the land in the limits of Ahmedabad Municipal Corporation the tenancy of Ramaji was not protected and his right to purchase the land was also not protected. Said decision of the A. L. T. dated 29/12/1961 is produced at Annexure 'A' and since all the petitioner-Trust has heavily referred to in this judgment in the earlier proceedings before the same parties, reference to this fact is found pertinent. (V) It appears that the petitioner-Trust has made an application to the Dy. Collector, Ahmedabad under Sec. 88B of the Bombay Tenancy Act, for its exemption from the provisions of Secs. 1 to 87 on the ground that the land in question was held by a trust which was registered under the provisions of the Bombay Public Trusts Act. 1950, and that the income of the trust was appropriated for the purpose of said trust, a certificate was required to be granted as contemplated by Sec. 88B. It is an accepted position of law that granting of certificate under Sec. 88B of the Tenancy Act in favour of public trust would result in the exemption of property of the said trust from the provisions of Bombay Tenancy Act. This application which was filed by the petitioner-Trust on 9-8-1958 came to be rejected by the Dy. Collector on Jane, 25, 1973, and revision preferred to the Guj. Revenue Tribunal being Revision Application No. TEN. B.A. 573 of 1973 was dismissed by judgment and order, dated 27/06/1974 whereby the Tribunal confirmed the findings reached by the Dy. Collector, Ahmedabad and held that the petitioner-Trust was not entitled to exemption under Sec. 88B of the Act, as it was a composite trust and it cannot be said that its income was exclusively used for the purpose of the trust. The aforesaid judgment of the Tribunal has become final and it shall have to be accepted that the petitioner-Trust never enjoyed benefit of exemption under Sec. 88B of the Bombay Tenancy Act. (VI) One important fact which is also pressed into service is required to be noted, and it is that the Dy. Collector has, in the proceedings under Sec. 88B initiated by the petitioner-Trust granted stay by his order passed in the month of December, l968 to Agricultural Lands Tribunal, Ahmedabad from proceeding further with any proceedings under Sec. 32G of Bombay Tenancy Act commenced or to be commenced thereafter. (VII) After termination of proceedings under Sec. 88B by the judgment and order of Gujarat Revenue Tribunal, dated 27/06/1974, the Gujarat Town Planning and Urban Development Act, 1976 came into force with effect from 17/02/1978, and as one of the submissions has reference to this fact, this fact is also referred to as an important fact. (VIII) During the course of proceedings under Sec. 88B it appears that the Head-tenant - Ramaji Adaji has expired and present respondent Nos. 1 to 4 are the heirs and legal representatives of the deceased-tenant. These heirs and legal representatives of deceased tenant thereafter on 5/03/1979 made an application under Sec 32G of the Bombay Tenancy Act for declaration that the deceased-tenant Ramaji Adaji, father of respondent Nos. 1 to 4 have become deemed purchaser of the parcel of land in question as on 1-4-1957 by operation of Sec. 32 of the Bombay Tenancy Act read with Sec. 32G and that the purchase price of the said parcel of land was required to be fixed by Agricultural Lands Tribunal. (IX) The Mamlatdar and A.L.T. pursuant to the application made by respondent Nos. 1 to 4, dated 5/03/1979 proceeded to hold enquiry and after recording evidence by judgment and order, dated 16/12/1989 declared that the applicants before him (present respondent Nos. 1 to 4) were in possession of the laud in question as on 1-4-1957 and were entitled to purchase the said land as deemed purchaser and it also fixed the purchase price at Rs. 3,335.00 and also directed issuance of appropriate certificate under Sec. 32M on said purchase price being deposited. However, the Mamlatdar & A.L.T. also directed by the operative part of the judgment that since the possession of the land was unauthorisedly recovered by the landlord, possession should be taken hack from the landlord and it should be handed over to the tenants. The Tribunal, accordingly, directed the Mamlatdar and A.L.T., Ahmedabad to take necessary action for taking possession from the landlord and to handover the same to the tenants. (X) Being aggrieved by the aforesaid judgment and order of the Mamlatdar and A.L.T. the petitioner-Trust preferred Tenancy Appeal No. 42 of 1990 while the heirs of the deceased-tenant preferred Tenancy Appeal No. 11 of 1990 and both these appeals, came to be heard and decided by common judgment and order by the Deputy Collector (Tenancy Appeals) Ahmedabad, dated 4-4-1990 The Deputy Collector dismissed the appeal preferred by the petitioner-Landlord and allowed the appeal preferred by the respondents-Tenants thereby altering the purchase price which was fixed by the A.L.T. (XI) Being aggrieved by the said judgment and order of the Appellate Authority the petitioner-Trust preferred two revision applications under Sec. 76 of Bombay Tenancy Act being Revision Application Nos. TEN. B.A. 94 of 1990 and 221 of 1990 which came to be dismissed by the Tribunal by the impugned judgment and order, dated 11/01/1991. It is this judgment and order of the Tribunal which is under challenge before this Court. (XII) Incidentally, it would be necessary to mention one fact that according to the petitioner-Trust the possession of the land in question was delivered to the petitioner-Trust by a regular possession receipt by respondent Nos. 1 to 3/06/1961. The findings of the authorities below on this point and the stand of the respondents before this Court is not consistent. However, we will accept as found by the three authorities below that on the date of application under Sec. 32G the petitioner-Trust was in possession of the land in question and that the tenants were illegally and unauthorisedly deprived of the possession of the land in question. It is not permissible for this Court to interfere with such concurrent findings of inferior tribunals. The petitioner-Trust has contended that it has lawfully recovered possession, from the tenants but all the three authorities have concurrently found that possession was illegally and unauthorisedly recovered by petitioner-Trust. As ultimate order passed by all the three authorities is consistent with the factum of loss of possession by the tenants, we will proceed to examine the submissions of the parties by accepting that as on the date of the application made by the heirs of the tenant on 5/03/1979, they were not in possession of the land in question. (XIII) Incidentally, one more fact is required to be noted and it is that in fact the petitioner-Trust instituted Civil Suit No. 3097 of 1979 in the City Civil Court at Ahmedabad against the heirs of the deceased-tenant and in such suit injunction is granted in favour of petitioner-Trust and against the heirs of deceased-tenant restraining them from taking over the possession of the land in question otherwise than by due process of law by judgment and decree, dated 31/12/1982. We are told at the Bar that Civil Appeal against said judgment has failed and Letters Patent Appeal is pending before the Division Bench of this Court.