RATHOD PUNJABHAI DEVABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Punjabhai Devabhai Rathod preferred these two petitions against the order of the Gujarat Revenue Tribunal dated 9/03/1979. By that common order the Tribunal disposed of two Revision Applications in which common questions of fact and law arose for consideration. Punjabhai has since expired and his legal representatives have been brought on the record of these petitions. The facts giving rise to these petitions briefly stated are as under.

(2.) Punjabhai was a protected tenant in respect of Survey Nos. 868 2 Acres 33 Gunthas and 870 3 Acres 25 Gunthas situate in village Pariej taluka Matar district Kaira. In about March or April 1976 as his possession in regard to these two Survey Numbers was threatened he filed two separate applications under sec. 70(b) of the Bombay Tenancy & Agricultural Lands Act 1948 (hereinafter called the Act) for a declaration that he was the tenant in respect of the aforesaid Survey Numbers. Those Applications were rejected by the Mamlatdar on 28/09/1976. The tenant preferred appeals against the rejection of his applications and the Assistant Collector Nadiad by his order dated 15/05/1978 allowed the appeals and remanded the matters for a fresh decision to the Mamlatdar. It may at this stage be mentioned that before the mamlatdar the applications wore contested on the plea that the tenant had surrendered the possession of the said two Survey Numbers voluntarily some time in 1956-57 and since then Maniben the landlady was in actual possession thereof. The defence was that the tenant had informed the Mamlatdar in writing on 21/12/1956 that he desired to terminate the tenancy and surrender his interest therein in favour of the landlady under sec. 15 of the Act. That application was disposed of by the Mamlatdar in exercise of power conferred by sec. 15/29 of the Act on 23/03/1957 It was therefore contended on behalf of the land-owner in the said two applications that the tenant having surrendered his interest in the two Survey Numbers in 1956-57 could not maintain the applications under sec. 70(b) of the Act and no declaration as such could be made in his favour. The Mamlatdar considered the entire evidence on record and came to the conclusion that the tenant had surrendered his interest in the two Survey Numbers and the landlady had been put in actual possession thereof under sec. 15 read with sec. 29 of the Act. He therefore rejected both the applications but when the appeals were heard by the Assistant Collector he entertained a doubt as regards the genuineness of the proceedings initiated under sec. 15/29 of the Act. This doubt was on the basis of a statement made by the tenant to the effect that he is literate and normally signs his name whereas the application for surrender bears a thumb mark which according to him was not his. In other words according to him the surrender application was sham and bogus and did not offer a valid defence to the landlord. The Assistant Collector entertained some doubt regarding the genuineness of the surrender application and therefore he thought it necessary to remand the cases to the Mamlatdar so that he may inquire into the genuineness of the surrender proceedings. Against the order passed by the Assistant Collector in the two appeals before him the landlords preferred two separate Revision Applications challenging the order of remand. Both these Revision Applications were disposed of by a common judgment dated 9/03/1979 The Revenue Tribunal considered the entire matter at length and came to the conclusion that the order of remand passed by the Assistant Collector was not justified in the facts and circumstances of the case. However with regard to the order pertaining to the two dwelling houses and a cattle shed standing on Survey No. 870 the Tribunal held that the tenant would be entitled to purchase the land over which the superstructures stood by virtue of sec. 17-B of the Act and remanded the matter to the Mamlatdar/Agricultural Lands Tribunal for fixation of the price. In other words the Tribunal upheld the order of the Mamlatdar with the modification insofar as the dwelling houses and cattle shed were concerned. It is against this order of the Tribunal that the present two petitions have been preferred under Art. 227 of the Constitution. As common question of law and fact arise in both these petitions I propose to dispose them of by this common judgment.

(3.) At the hearing of these two petitions Mr. A. M. Bukhari the learned advocate for the petitioners formulated three points for this Courts consideration namely: