DIVALIBEN Vs. MAVJIBHAI VASANJIBHAI AHIR

JUDGEMENT

(1.) . Does any or every in the procedure call for interference by the Gujarat Revenue Tribunal (the Tribunal for convenience) with the appallate order in exercise of its powers under Section 76 of the Bombay Tenancy and Agricultural Lands Act 1948 (the Act for brief) irrespective of the fact whether or not such defect is inconsequential and whether or not no miscarriage of justice has occasioned thereby ? This is the main question that has cropped up in this petition under Article 227 of the Constitution of India questioning the correctness of the decision rendered by the Tribunal on 12th November 1980 in Revision Application No. TEN.B.S.222 of 1979.

(2.) . The facts giving rise to this petition move in a narrow compass. The respondent herein moved an application under Section 70(b) of the Act for his declaration as a tenant in respect of some five parcels of land bearing Survey Nos. 129 admeasuring 1 acre 32 gunthas 130 (Part) admeasuring 3 acres 17 gunthas 63 admeasuring 1 acre 14 gunthas 135 admeasuring 0 acre 14 gunthas and 180 (Part) admeasuring 0 acre 20 gunthas all situated In village Kani taluka Mahuva district Surat (the disputed lands for convenience). He also moved an application for interim injunction under action 70(nb) of the Act. It came to be registered as Tenancy Case No. 37 of 1978 in the Mamlatdars Court at Mahuva. After recording evidence and hearing the parties by his order passed on 14th May 1979 in Tenancy Case No. 37 of 1978 the Mamlatdar at Mahuva held the petitioner not to be a tenant of the disputed lands and his application came to be rejected. A copy of the aforesaid order passed by the Mamlatdar is at Annexure-A to this petition. That aggrieved the respondent herein. He therefore carried the matter in appeal before the Deputy Collector at Vyara. It came to be registered as Appeal No. 46 of 1979. By his order passed on 17th September 1979 in the aforesaid appeal the Deputy Collector at Vyara dismissed it. Its copy is at Annexure-B to this petition. The aggrieved petitioner thereupon invoked the revisional jurisdiction of the Tribunal under Section 76 of the Act. A copy of the memo of revision is at Annexure-C to this petition. That came to be registered as Revision Application No. TEN. B. S. 222 of 1979. By its decision rendered on 12th November 1980 in the aforesaid revisional application the Tribunal accepted it and remanded the matter to the Mamlatdar for deciding the matter afresh after giving full opportunity of leading evidence to the concerned parties and of being heard. A copy of the aforesaid decision of the Tribunal is at Annexure-D to this petition. That aggrieved the present petitioner. She has therefore invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India for questioning the correctness of the decision at Annexure-D to this petition.

(3.) . It transpires from the decision of the Tribunal at Annexure-D to this petition that the Tribunal found the procedure adopted by the Mamlatdar to be defective inasmuch as certain depositions were not recorded on oath. The Tribunal also found defect in the procedure adopted by the Mamlatdar inasmuch as the present petitioner was represented by her Power of Attorney-holder before the Mamlatdar and the Mamlatdar recorded the evidence of the Power of Attorney-holder without administering oath. In view of this defect in the procedure adopted by the Mamlatdar as found by the Tribunal the order of the Mamlatdar at Annexure-A to this petition and the order of the Deputy Collector at Annexure-B to this petition were upset by the Tribunal and the matter was remanded to the Mamlatdar for deciding the matter afresh as aforesaid.