JETHABHAI DUDHABHAI Vs. BAI HARKHA

JUDGEMENT

(1.) The petitioner was a tenant in respect of the land bearing survey No. 128/3 129 and 132/1 of the sim of village Dabhsar Taluka Thasra. The land altogether admeasured 2 acres and 14 gunthas. It is not in dispute that on the appointed date i.e. between June 15 1955 and March 3 1973 the petitioner was in possession of the land in question. However the case of the respondent-landlord is that the petitioner tenant had surrendered the possession of the land to the landlord. According to him the surrender was valid inasmuch as it was surrendered during the proceedings under Section 31 of the Bombay Tenancy and Agricultural Lands Act and the compromise arrived at between the parties was produced before the Mamlatdar and the Mamlatdar has passed order there on.

(2.) On coming into force of the Bombay Tenancy and Agricultural Lands Amendment Act 5 of 1973 Section 32 (1B) has been added under the provisions of the said Act. As per this provision a tenant who has lost his possession during the time between June 15 1955 and March 3 1973 can apply to the Mamlatdar for restoration of possession. In the instant case the petitioner-tenant applied to the Mamlatdar on July 11 1976 and prayed that the possesion of the land in question be restored to him. After following the requisite procedure and after hearing the respondent-landlord the Mamlatdar came to the conclusion that the possession of the land us required to be restored to the petitioner-tenant and hence granted the application. This order was passed by the ALT and Mamlatdar Thasra on September 15 1976 (Annexure A. Being aggrieved by the said order the respondent- landlord prepared an appeal before the Deputy Collector Anand. The Deputy Collector Anand held that the surrender of the land by the petitioner-tenant was not legal and valid and therefore he confirmed the order passed by the ALT and Mamlatdar Thasra and ordered to dismiss the appeal preferred by the landlord. The Deputy Collector passed this order in appeal on August 31 1977

(3.) The respondent-landlord preferred revision before the Gujarat Revenue Tribunal. On a hyper technical consideration of the provisions of Section 32 of the Mt the Tribunal held that the Mamlatdar could have exercised power under Section 32 (1B) suo motu at any time. But he could have exercised the power under the said provision if the application us given by a tenant beyond the period of limitation prescribed under the provisions of Rule 15 of Bombay Anand and agricultural Lands Rules 1956 The Tribunal held that the amended provision of the Act came into force on March 3 1973 As per the provisions of Section 32 (1B) of the Act the tenant should haw applied to the Mamlatdar within prescribed period and the prescribed period being one year under the provisions of Rule 15 the application should haw been made on or before March 3 1974 Admittedly the application before the ALT and Mamlatdar has been submitted the petitioner-tenant on July 11 1976 i.e. after a period of more than two years.