MINUBHAI JAMSHEDJI ITALIA Vs. MAMLATDAR AND ALT CHIKHALI

JUDGEMENT

(1.) The short facts of the case appear to be that the proceedings under Section 32FF of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as ?the Act?) were initiated for the land admeasuring 5 acres and 13 gunthas bearing Survey No.1164 at village Sadad Vel, Dafri Falia, Taluka Chikhli. The order dated 20th September, 1978 was passed in the said case, whereby it was decided to initiate the proceedings under Section 32(1)(B) of the Act. It appears that the depositions were recorded of the legal heirs of the original tenant namely; Rasuliben widow of Mehrvan Visal on 6.4.1983 as well as on 13.7.1984. However, thereafter vide order dated 13.7.1984 it was decided to close the proceedings. The mater was taken in suo motu revision by the Dy. Collector and as per the order dated 13th November, 1988 the order of the Mamlatdar was set aside and the case was remanded to the Mamlatdar for consideration. It appears that before the Mamlatdar and ALT, after remand, the date of hearing was fixed, but the petitioner did not remain present and the Mamlatdar proceeded ex parte. On the date fixed i.e. 15.1.1990, the deposition was recorded again of the claimant/legal heirs of the tenant and the Mamlatdar passed the order on 20.1.1990, whereby it was found that the tenant was unlawfully dispossessed and on the relevant date i.e. on 15.6.1955, the tenant was in possession and, therefore, entitled to get the possession of the land and consequential order was also passed. It appears that pending the proceedings, the petitioner transferred the land to respondent No.7 on or about 5.8.1989. Such factum was not brought to the notice of the Mamlatdar. The matter was carried before the Dy. Collector by preferring appeal being Appeal No.53/1990 by the petitioner herein and the said appeal, as per the order dated 22.1.1991, was dismissed. The matter was further carried the before the Tribunal by the petitioner being Revision Application No.129/1991 and the Tribunal also dismissed the revision as per its decision dated 11.7.1997. It is under these circumstances the petitioner has approached this Court by preferring the present petition.

(2.) Heard Mr.Pardiwala, learned Counsel for the petitioner, Mr.Desai, learned AGP for respondents No.1, 2, and 3, Mr.Munshi, learned Counsel for respondents No.4, 5, and 6 and Mr.Rakesh Patel, learned Counsel for respondent No.7.

(3.) It appears that through out in the proceedings before the lower authority, including upto the Tribunal, there is no consideration of the depositions of the legal heirs of the tenant namely; Rasuliben dated 6.4.1983 as well as dated 13.7.1984, which came to be recorded before the order dated 13.7.1984 was passed by the Mamlatdar for closure of the proceedings under Section 31 of the Act. A copy of the depositions is produced by the petitioner in the record of this petition and the same, inter alia, shows that as per the deposition dated 6.4.1983, which has been stated by Ms.Rasuliben Mehrvan Visal that the possession of the land was entrusted to the landlord since last seven to eight years and the possession is surrendered. Thereafter in the very deposition it has been subsequently stated that at that time her son was 10 years old and, therefore, the possession was handed over in the year 1950 and the approximate period shown was 52 to 53 years. In the deposition dated 13.7.1984 it has been stated in the examination-in-chief that the husband of the deponent, was working on labour basis and the amount of labour was paid in cash and receipt was not taken or was not being issued for such payment. It is also stated that if the land was given by the Government under the Tenancy Act to her she was not happy and she was given to understand that under the Tenancy Act, she may get land. In the order of the Mamlatdar and ALT dated 20.1.1990, there is no reference whatsoever to such deposition, nor the Mamlatdar has considered the same and has discarded the deposition recorded. The order of the Mamlatdar dated 20.1.1990 proceeds on the basis of the deposition recorded on 15.1.1990. Therefore, as such it can be said that if the material pieces of evidence are not at all considered by the quasi judicial authority while exercising the power, the jurisdictional error is committed.