BHAGUBHAI DAHYABHAI PATEL Vs. HANSABEN

JUDGEMENT

(1.) The short facts of the case are that the deceased Bhagubhai Dahyabhai Patel (hereinafter referred to as "Tenant"), claiming the right as a tenant over a land bearing Survey No. 330 at Village Uttarsanda, which was owned by Gordanbhai Bhailalbhai Patel (hereinafter referred to as "the Landlord"). It appears that there were proceedings under the Bombay Tenancy and Agricultural Lands Act and ultimately vide order dated 2.12.1985, Mamlatdar and ALT declared that the landlord has wrongly taken over the possession, but as the tenant was not desirous to receive the possession back, the land was ordered to be vested to the Government. The tenant did not prefer appeal against the said order of the Mamlatdar, but the landlord preferred appeal being Appeal No. 84 of 1986 before the Dy. Collector, which was dismissed. It appears that the revision was preferred by the landlord, which was also dismissed, for which the review application was preferred by the tenant, which ultimately as per the order dated 3.10.1993 was dismissed.

(2.) It appears that in the meantime, the land was disposed of by the Mamlatdar and ALT vide order dated January 31, 1987 and the tenant preferred revision before the State Government. As per the respondent tenant, even earlier appeal was preferred in July 1987, however, the same was returned since the revision was pending before the Tribunal. It appears that thereafter the appeal came to be preferred by the tenant once again before the State Government in the year 1994 and the said appeal was partly allowed and the direction was given to the Mamlatdar and ALT vide order dated 15.6.1994 by the State Government. The petitioner herein carried the matter further before this Court by preferring SCA No.8827 of 1994. In the said SCA this Court (Coram: S.D.Dave, J - as he then was) vide its judgement dated 8.12.1994. observed, inter alia, that the appeal was not competent before the State Government, but was competent before the Collector and, therefore, by setting aside the order of the State Government, this Court observed for presentation of the appeal before the competent Collector acting under Section 74 of the Act. On the aspects of limitation, the Court did not conclude the question and left it to the Collector to decide the same according to law and on merits after hearing the contentions of both the parties on the question of limitation also. It appears that thereafter the appeal was heard by the Dy. Collector under Section 74 of the Act and the reasons recorded in the order the appeal was dismissed. On the aspects of limitation, the contentions were there by the petitioner as well as by the respondent tenant, however, the Dy. Collector proceeded on the basis that the time was consumed in preferring proceedings before the State Government and, therefore, as the High Court has directed for hearing of the appeal, the appeal was treated as in time. It appears that the legal heirs of the tenant preferred revision before the Tribunal being No. 482 of 1985 and the Tribunal decided the revision vide order dated 10.11.1997, whereby the revision is partly allowed and the order of the Mamlatdar as well as of the Dy. Collector are set aside and the matter is remanded for fresh proceedings under Section 35P of the Act in light of the observations and it is under these circumstances the present petition before this Court.

(3.) I have heard Mr. A.J.Patel, learned Counsel appearing for the petitioner, Mr.Chhaya, learned AGP for the State Authorities and Mr.P.G.Desai, learned Counsel for respondents being legal heirs of the tenant.