DAHYABHAI WAGHJIBHAI Vs. BABUBHAI JETHABHAI PARMAR

JUDGEMENT

(1.) In this petition the petitioner has challenged the order of the Gujarat Revenue Tribunal confirming the order of the Deputy Collector Petlad that the order dated 29th August 1975 passed by the Mamlatdar and Agricultural Land Tribunal Dharmaj is not appealable as the proceedings before the Mamlatdar and A.L.T. were under Section 32 (O) of the Bombay Tenancy and Agricultural Lands Act hereinafter referred to as the Act.

(2.) It is urged on behalf of the petitioner that the Revenue Tribunal has erred in holding that the aforesaid order of the Mamlatdar and A.L.T. is not appealable on the ground that Section 74 of the Act does not specifically enumerate the order passed under Section 32-O of the said Act. Mr. P. B. Majmudar the learned Counsel for the petitioner has urged that the question whether such an order is appealable or not is now covered by the Division Bench Judgment of this Court in Keshavlal Pragji v. Gujarat Revenue Tribunal and Another reported in 16 G.L.R 904. He has urged that in the said Division Bench Judgment the Court has held that the question whether the person is a tenant or not is covered under Section 4 of the Act. According to him Section 4 not only covers the cases of deemed tenant but also that of actual tenant. Mr. Majmudar has referred to the specific issue No. 1 raised by the Mamlatdar and A.L.T. which is to the effect whether the applicant is a tenant of the suit land after 1-4-57 to which the Mamlatdar A.L.T. has given a finding in the affirmative holding that the applicant is a tenant of the suit land after the aforesaid date. Mr. Majmudar has further argued that this issue must necessarily fall under Section 4 of the Act. It is not in dispute that the order passed under Section 4 of the Act is appealable because it is specifically enumerated in Section 74. Therefore Mr. Majmudar has urged that the impugned order passed by the Mamlatdar A.L.T. is not only under Section 32-O but also under Section 4 of the Act and hence it is appealable. Mr. R. A. Mishra the learned Counsel for respondent No. 1 has urged that the impugned order must be held to be the order under Section 32-O only and not under Section 4 of the Act. According to Mr. Mishra the legislature has advisedly excluded an order passed under Section 32-O from the list of appealable orders included in Section 74 (1). Mr Mishra has also urged that if the legislature wanted to give the right to appeal against the order passed under Section 32-O it would have specifically enumerated the said Section. Its omission from sub-section (1) of Section 74 according to him should be interpreted as the clear intention of the legislature not to provide an appeal against that order.

(3.) Looking to the issues raised by the Mamlatdar and A.L.T. it is quite clear that the most basic question before the Mamlatdar and A.L.T. was whether the applicant was a tenant of the suit land after the Tillers Day. Only on giving a finding to that issue the question of his having a right to purchase under Section 32-O would arise. Therefore it has to be held that the impugned order passed by the Mamlatdar and A.L.T. was not only under Section 32-O but also under Section 4 of the Act. This view is supported by the observations made by the Division Bench of this Court in its Judgment referred to above. It is also pertinent here to refer to the legal position that the aforesaid order passed by the Mamlatdar and A.L.T. would be covered under the powers conferred on the Mamlatdar under Section 70(b) of the Act. The order passed by the Mamlatdar under Section 70(b) was earlier held to be not appealable by the Judgment of J. B. Mehta J. but the legislative amendment being Gujarat Act 19 of 1973 has specifically made the order passed under Section 70(b) of the Act appealable. Hence also the impugned order passed by the Mamlatdar and A.L.T. being order under Section 70(b) of the Act it is appealable. Therefore the impugned judgment and order of the Gujarat Revenue Tribunal confirming the order of the Deputy Collector Petlad is hereby quashed and set aside. The matter is remanded back to the Deputy Collector Petlad to hear and dispose of the appeal on merits as expeditiously as possible in view of the fact that the matter has been pending for nearly a decade.