JIVRAJ JUTHA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These two petitions under Article 226 of the Constitution of India raise a short but an interesting question regarding right of a tenant-deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter called the Tenancy Act) to be ofFered for purchase under sec. 32P (2) (c) that very portion of land held by him as a tenant on the tillers day the deemed purchase of which had become inoperative under the provisions of sec. 32 of the Tenancy Act.

(2.) In order to highlight the question involved in the petitions a few relevant facts may be noted at the outset. The petitioners in both these petitions were lawful tenants of certain agricultural lands situated in village Dungri-Mithapur in Dhari taluka of Amreli district. Under the provisions of sec. 32 of the Tenancy Act they became deemed purchasers of these lands. In proceedings under see. 32-G of the Tenancy Act for fixation of purchase price in favour of the petitioners it was found that both the petitioners were holding lands in excess of the ceiling area as prescribed by sec. 2 (2D) read with sec. 5 of the Tenancy Act. The ceiling area limit for agricultural land was 48 acres of jirayat land. In case of both the petitioners it was found that their holdings would exceed 48 acres if they were permitted to purchase all the lands held by them as tenants under the Tenancy Act. It was held by the Mamlatdar and ALT that the petitioner in special civil application No. 1773 of 1977 was holding excess land admeasuring 3 acres 27 gunthas while the petitioner in Special Civil Application NJ 316 of 1978 was holding excess land admeasuring 20 acres-38 gunthas. these excess lands could not be sold to the petitioners as deemed purchasers on account of the combined operation of sec. 32 and sec. 32E of the Tenancy Act. Consequently these excess lands which could not be purchased by the petitioners as deemed purchasers had to be disposed of by the Collector in the manner specified in clause (c) of sub-sec. (2) of sec. 32P. The petitioners contended that the extent of ceiling area had undergone a change in view of the latter notification issued by the State of Gujarat under sec. 7 of the Tenancy Act by which the ceiling was raised. That contention was repelled by the Deputy Collector on the ground that the subsequent notification issued under sec. 7 had no effect on the situation that prevailed on 1-4-1957 on which day the petitioners were held to have become deemed purchasers and consequently the excess land computed by the Mamlatdar and ALT in case of each of the petitioners was required to be disposed of under sec. 32P (2) (c) as enjoined by sec. 32E of the Tenancy Act. This decision of the competent authority has become final as it was ultimately confirmed by this court. It is in these circumstances that the Mamlatdar Dhari acting as Collector initiated proceedings under sec. 32P (2) (c) of the Tenancy Act for terminating tenancies of the petitioners and for summarily evicting them and for disposal of their excess lands as per the said provisions Notification to that effect was issued by the Mamlatdar Dhari under sec. 32P (2) (c) on 1-4-1977. That Notification is at annexure F to Special Civil Application No. 1773 of 1977 and annexure D to Special Civil Application No. 316 of 1978. The petitioners contend that as per the provisions of sec. 32P (2) (c) (a-i) they are entitled to be given priority for the purpose of purchasing these very lands which are sought to be disposed of under sec. 32P (2) (c) and as no offer was made to them in the first instance even though they stood first in the priority list as per the aforesaid provision the Notification dated 1-4-1977 as issued by the Mamlatdar exercising powers of the Collector is null and void and consequently the petitioners cannot be summarily evicted from the lands till the question of their right in priority to purchase these lands is decided by the authority under sec. 32P (2) (c). The petitioners aforesaid contention was not accepted by the respondents acting as competent authorities under the Act and that is how the petitioners have landed in this court. . .. ... ... ... ... ...

(3.) In order to resolve this question it is necessary to have a look at a few relevant provisions of the Tenancy Act. Sec. 2 (2D) defines ceiling area to mean in relation to land held by a person whether as an owner or tenant of partly as owner and partly as tenant the area of land fixed as ceiling area under sec. 5 or 7. Sec. 5 of the Tenancy Act provides: