HEIRS OF DECEASED MULJIBHAI Vs. STATE

JUDGEMENT

(1.) Should a tenant who has surrendered his tenancy rights after 15/06/1955 but before 1/04/1957 under an illegal surrender be deprived deemed purchase of the tenanted land simply on the ground that he had a misfortune to lose his actual possession thereof under such illegal surrender before 1/04/1957 ? This is the main question arising in this petition under Articles 226 and 227 of the Constitution of India.

(2.) The facts giving rise to this petition are not many and not much in dispute. The predecessor-in-title ('the deceased' for convenience) of the present petitioners was the tenant of one parcel of land bearing Survey No. 1294 admeasuring 2 acres 14 gunthas situated at village Anklav, Taluka Borsad, District Kheda ('the disputed land' for convenience). He was said to have surrendered it to the predecessor-in-title of respondent No. 2 herein ('the landlord' for convenience). It appears that the surrender was accepted by the Additional Aval Karkoon at Borsad by his order passed on 5/07/1955 in Tenancy Case No. 214 of 1955. Its copy is at Annexure D to this petition. The parties are at variance as to when the tenant handed over the actual possession of the disputed land to the landlord. According to Shri Jadeja for respondent No. 2, it was done prior to 15/06/1955, that is, the "appointed day" for the purposes of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Act' for brief). Shri Dave for the petitioners submits that it was done after 15/06/1955. The contesting parties are not at variance that its actual possession was handed over by the tenant to the landlord before 1/04/1957, that is, the 'tillers day', for the purposes of the Act. It appears that the tenant breathed his last presumably after the tillers' day leaving behind him his widow and his two sons, named, Muljibhai and Mansinh, as his heirs and legal representatives. They made one application on 17/06/1970 under Section 32G of the Act 'to the Mamlatdar and Agricultural Lands Tribunal No. 1 at Borsad (the first authority for convenience) for fixation of the purchase price with respect to the disputed land. It came to be registered as Tenancy Case No. 6 of 1970. Incidentally, a declaration was also sought therein to the effect that the deceased was a tenant of the disputed land. The application was thereupon treated to be, also under Section 70(b) of the Act. After recording evidence and hearing the parties, by his order passed on 13/12/1976 in the aforesaid proceeding; the first authority rejected it. Its copy is at Annexure B to this petition. it appears that in the meantime one son, named, Muljibhai of the deceased, also breathed his last leaving behind him petitioners Nos. 1/1 to 1/4 as his theirs and legal representatives. The present petitioners and their widow mother were obviously aggrieved by the aforesaid order at Annaxure B to this petition. They therefore carried the matter in appeal before the Deputy Collector at Kheda by means of their Tenancy Appeal No. 50 of 1977/78 ('the appellate authority' for convenience). By his order passed on 27/12/1980 in the aforesaid appeal, the appellate authority dismissed it. Its copy is at Annexure C to this petition. It appears that in the meantime the widow of the deceased also breathed her lest leaving behind the present petitioners as her heirs and legal representatives. They were obviously aggrieved by the appellate order at Annexure C to this petition. They therefore invoked the revisional jurisdiction of the Gujarat Revenue Tribunal at Ahmadabad ('the Tribunal' for convenience) by means of their Revision Application No. TEN. B.A. 541 of 1981. By its decision rendered on 26/02/1988 in Revision Application No. TEN. B.A. 541 of 1981, the Tribunal rejected it. Its copy is at Annexure A to this petition. The aggrieved petitioners have thereupon moved this Court by means of this petition under Arts. 226 and 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure B to this petition as affirmed in appeal by the appellate order at Annexure C to this petition as further affirmed in revision by the impugned decision at Annexure A to this petition.

(3.) Though this petition is stated to be under Arts. 226 and 227 of the Constitution of India, it will have to be treated as the one under Art. 227 alone in view of the Division Bench ruling of this Court in the case of Jashubhai Hiralal Gandhi v. Competent Authority and Deputy Collector, Ahmedabad reported in 1990 (2) GLH 609.