DESAI NAVINKANT KESARLAL Vs. PRABHAT KABHAI

JUDGEMENT

(1.) This is a group of 12 Special Civil Applications Nos. 88 to 99 of 1964 wherein facts are similar and common questions of law are raised and will all be dealt with and disposed of by this common judgment. All the petitioners in this group of petitions are Ex-Inamdars of Khandoli village in Kalol Taluka of District Panch Mahals. The Bombay Personal Inam Abolition Act 1952 was applied to this inam village in 1955. But before that Record of Rights was prepared and was promulgated on the 29th April 1954. It is the case of the petitioners that a large number of tenants of the petitioners were arbitrarily shown as permanent tenants in the said record of rights even though they could not be held to be permanent tenants within the meaning of the provisions of the Bombay Land Revenue Code and the 12 tenants who are opponents Nos. 1 in the respective petitions before us were also entered as permanent tenants in the said record of rights. On behalf of the petitioners this entry made in the record of rights was challenged by an application dated the 30th of July 1954. This application was addressed to the Mamlatdar but it was filed before the Extra Aval Karkun. By the said application the petitioners tried to contend that the 167 tenants of theirs including these 12 tenants were not permanent tenants and the entry noting them as permanent tenants was wrong and incorrect. This application however was not disposed of till the 28th of December 1958 and on that day the Aval Karkun decided after going through the merits of the case that the tenants were not permanent tenants as the starting point of the tenancy of each of the tenants could be determined and that neither of these tenants was a mulganidar or a mirasdar nor any of them was holding the land on a permanent basis by the orders of any competent Court. It was further held that none of the tenants was registered as a permanent tenant in any record recognised by the Government. He therefore ordered that the tenants should be shown in the record of rights not as permanent tenants but as tenants of other categories. No appeal was filed against this order of the Aval Karkun but it appears that some miscellaneous applications were filed by some of the tenants to the Mamlatdar Kalol and the Mamlatdar appears to have referred the matter to the Collector and the Collector in his turn had referred the matter to the Commissioner Baroda Division. The Commissioner Baroda Division. without going into the merits of the case set aside the order of the Aval Karkun purporting to act under his revisional jurisdiction under rule 108(6) of the rules framed under the Bombay Land Revenue Code (hereinafter referred to as the Code). The Commissioner passed his first order in respect to it on the 5 of September 1961. He not only annulled the order of the Aval Karkun but further directed that the Mamlatdar Kalol should decide the dispute under sec. 5 of the Bombay Personal Inam Abolition Act 1952 read with sec. 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act 57 of 1958 as the village in which the lands were situated was Ex-personal inam village. Thereafter the Commissioner by his another order of the 17th February 1962 which purport to substitute the prior order that he had Passed further directed that the aggrieved parties may approach proper Court or may take recourse to available remedy if so advised. It is the case of the petitioners that the said order was passed by the Commissioner in compliance with the instructions issued by the Government of Bombay by their Circular dated the 9tb September 1957 whereby the Government had directed that if any party challenged the entries in the record op rights pertaining to the status of the tenant such party should be directed do apply to the Mamlatdar under sec. 71 read with sec. 70(b) of the Tenancy Act for determining tenancy rights. By the said circular the Government had taken the view that it would be open to the Mamlatdar to decide the status of the tenant and if the entry in the record of rights was found to be incorrect that entry would have to be corrected with retrospective effect. A copy of the said circular has been produced and annexed as Annexure D to the petition. Thereafter the petitioners filed an application dated the 4th of September 1962 before the extra Aval Karkun at Kalol under sec. 70(b) of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act). The Aval Karkun after hearing the parties and examining the evidence adduced by all the parties decided that the tenants including 12 tenants with whom we are concerned in these petitions were not permanent tenants but were only protected tenants and he directed that the namos of these tenants should be accordingly entered as protected tenants in the record of rights. The tenants being aggrieved by the said order filed appeals before the Assistant Collector Godhra. The said officer refused to go into the merits of the question of the status of the tenants and took the view that the said tenants were permanent tenants as their names were entered in the record of rights as permanent tenants and accordingly on the 31st December 1963 he allowed the appeals holding each of the 12 tenants to be permanent tenants.

(2.) The petitioners being aggrieved by the said order filed revision applications before the Gujarat Revenue Tribunal under sec. 76 of the Tenancy Act against the said order passed by the Assistant Collector. The Tribunal decided the matter on the 2nd of August 1963 and dismissed the application of the petitioners holding that the tenants were permanent tenants in view of the inclusive part of the definition given by sub-sec. 10A of sec. 2 of the Tenancy Act. But it would be important to note at this stage that the Tribunal also gave its considered opinion on the factual aspect and held that so far as the tenants were concerned they had not succeeded in establishing that they were either permanent tenants in fact falling either under the provision of clause (a) of sub-sec. (10A) or the first part of clause (b) of the said sub-section. The petitioners being aggrieved by this decision have filed these 12 petitions.

(3.) On behalf of the petitioners in all the matters the following broad submissions were made before us in support of the petitions and we shall deal with them in the same order:-