JASHBHAI M PATEL Vs. DHULABHAI LAKHABHAI

JUDGEMENT

(1.) Heard learned Counsels for the parties. This Special Civil Application arises out of the proceedings under Sec. 32G of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as the "Act 1948") initiated by the Mamlatdar and A.L.T., Borsad in respect of the land of Survey No. 215, admeasuring two acres, 29 gunthas, situated at village Umlav, Taluka Borsad, District Kaira.

(2.) In those proceedings, the petitioner appeared before the Mamlatdar and A.L.T. and contended that the land in question was subject-matter of surrender proceedings before the said authority in Tenancy Case No. 576 of 1955 which has been decided on 19th March, 1956. In the said tenancy case, the Mamlatdar was pleased to pass the order of surrender after complying with the procedure laid down under the provisions of the Act 1948. That order of surrender has not been challenged by the for quashing the order dated 8-9-1982 passed by the Gujarat Revenue Tribunal. respondent. In these proceedings, the Mamlatdar under its order dated 5-1-1980 held that surrender of the land made by the tenant in favour of the owner is illegal and therefore, the tenant continues to be legal tenant of the land in dispute. It has further been held by the Mamlatdar that the tenants applied to obtain possession of the land from the land owner and then purchase price shall be fixed. The petitioner, therefore, preferred Tenancy Appeal No. 2871 of 1979 against the aforesaid order of the Mamlatdar before Deputy Collector, who allowed the said appeal under its order dated 19th March 1981 and set aside the order of the Mamlatdar dated 5-1-1980. The appellate authority held that the surrender of the land made by the tenantrespondent in favour of the land owner was legal. The tenant-respondent filed Revision Application before the Gujarat Revenue Tribunal against the order of Deputy Collector. The Gujarat Revenue Tribunal under its order dated 8-9-1983 accepted the said Revision Application and held that the legal tenancy of the tenantrespondent subsists on 1-4-1957. The surrender of the possession of the land in dispute by tenant-respondent to the land owner-petitioner was declared to be null and void. The petitioner-land owner was held to be unauthorised occupier of the land in dispute. The order of the Mamlatdar dated 5-1-1981 was confirmed with directions that the Mamlatdar shall take consequential proceedings under Sec. 32G of the Act 1948 to fix purchase price of the land as the tenant is declared to be deemed purchaser of this land and he was legal tenant of this land as on 1-4-1957. Hence, this Special Civil Application by the petitioner before this Court.

(3.) The learned Counsel for the petitioner contended that both the Mamlatdar and the Gujarat Land Revenue Tribunal have not drawn distinction in between dispossession and voluntary possession of the land to the land owner by the tenant. Under the provisions of Sec. 32(1)(b), the learned Counsel for the petitioner contended that voluntary delivery of possession by the tenant to the landlord is not dispossession of tenant by the landlord and as such, he could not have been held to be legal tenant as on 1-4-1957 and his possession could not have been held to be legal on the land as on 1-4-1957. The voluntary possession delivered to the petitioner by the respondent has illegally been held to be null and void. Here is a case of voluntary surrender of possession and as such, the Tribunal has committed illegality in holding it to be a case of dispossession of the tenant. In support of this contention, the learned Counsel for the petitioner strongly placed reliance on the decision of Supreme Court in the case of Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal (Since Decd.) By His LRs. and Anr., reported in [1995(1)] XXXVI(1) GLR 344 (SC).