OD ZAVERBHAI GOBARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner-tenant has in this petition challenged the order of the State Government dated 18-6-64 by which the State has under sec. 88D(1)(iv) refused to cancel the certificate granted to respondent No. 2 on the ground that it was not satisfied that the annual income of respondent No. 2 landlord exceeded Rs. 1500.00. The petitioner applied on 5-9-63 to the State Government for cancelling respondent No. 2 certificate on the ground that the respondent No. 2 was earning an income of Rs. 100.00 by way of salary being a municipal servant and so the annual income was of Rs. 1200.00by way of salary. He also realised rent of Rs. 800.00 per month from the tenant Parsottamdas Maganlal of his house which was wrongly assessed in the municipal record at only Rs. 420/- Besides the rent of the said land was Rs. 157.00. On these grounds the petitioner claimed cancellation of the exemption certificate as respondent No. 2s income exceeded Rs. 1500.00. When this inquiry was held by the Mamlatdar who was deputed for this purpose by the State Government the petitioner wanted summons to be issued to the municipal authority to prove the said income of respondent No. 2. This summons was refused on the ground that the authority had no such power to issue summons in such an inquiry. This request was repeated before the State Government in the petitioners application dated 14-3-54. Without paying heed to this request the State has passed the impugned order to the effect that the Government was not satisfied that the annual income of the landlord exceeded Rs 1500/- and so no question arose of passing order under sec 88D(1)(iv). In the affidavit filed by the Under-Secretary on perusal papers the allegations in para 6 are admitted to be substantially correct In the said all allegations the petitioner had stated about the house income of Rs. 800.00. The Under-Secretary further stated in the said affidavit that the summons was refused as there was no power to issue such summons It is also stated that the landlord had produced a certificate from the Chief Officer Baroda Municipality showing that he was an operator employed on daily wages and he earned for 15-20 days in a month and his yearly income came to Rs. 65Q.00. The Under-Secretary therefore stated that as the petitioner failed to discharge the burden to prove that the income of respondent No. 2 exceeded Rs. 1500.00 the impugned order was justified.

(2.) Sec. 88C(1) provides for exemption of lands which fulfill two conditions: (1) the landlord does not hold such land leased exceeding the economic holding and (2) the total income of the landlord including rent of such land does not exceed Rs. 1500.00. On these two conditions being satisfied there is exemption from the provisions of secs. 32 to 33R. Such tenant of the certified landlord becomes an excluded tenant who becomes a deemed purchaser under sec. 32U only on 1-4-62 if the landlord had not terminated his tenancy nor applied for possession; or if an application was finally rejected on the postponed date. Thereafter sec. 88C(2) requires that the person eligible to exemption provided in said sec. (1) shall apply in the prescribed form to the Mamlatdar for a certificate that he is entitled to such exemption within the prescribed period. Sub- clause (3) provides that on receipt of such an application the Mamlatdar shall after giving notice hold inquiry and decide whether the land leased by such person is exempt under sub-sec. (1) from the provisions of sec. 32 to 32R. Thereafter sec. 88D(1) provides that notwithstanding anything contained in sees. 88 88 88 and 88C if the State Government is satisfied(iv) in the case of lands referred to in sec. 88CC that the annual income of the person has exceeded Rs. 1500.00 or that the total holding of such person exceeds an economic holding the State Government may by an order published in the prescribed manner direct that with effect from such date as may be specified in the order such land or area shall cease to be exempted from all or any of the provisions of the Act from which it was exempted under the aforesaid sections and any certificate granted uDder sec. 88B or 88C shall stand revoked. When the two secs. 88C and 88D are read together it is clear that the relief which is granted to a landholder by giving this exemption from secs. 32 to 32 is dependent on the two objective conditions being satisfied: (1) as to said land leased not exceeding economic holding and (2) as to the annual income including rent of such land not exceeding Rs. 1500.00. Even if a certificate is granted after inquiry under sec. 88C it is liable to be cancelled by the State Government under sec. 88D(1)(iv). Therefore there can be no doubt that the State Government which is given power to decide these substantial rights of the contesting parties must act judicially. The satisfaction which is contemplated in sec. 88C(1) of the State Government can never be subjective satisfaction but it must be objective satisfaction based on relevant evidence led before the State Government who is the third party to determine the lis between these two contending parties. The nature of inquiry under sec. 88D(1) must be a judicial inquiry when such an important function is delegated to the State as a third party to determine lis between the two contending parties affecting such substantial rights. Even though no express provision is made as to the nature of this inquiry it must be held to be a judicial inquiry and its nature cannot be different than the nature of the earlier inquiry under which exemption was granted under sec. 88C. As that inquiry under sec. 88C starts with an application as prescribed under R. 53 the procedure of such inquiry before the Mamlatdar must be as before the Mamlatdar Courts Act under sec. 72 of the Tenancy Act and to the extent that the said Mamlatdar Courts Act is silent the procedure shall be under the residuary rule 44 of the Bombay Land Revenue Code Rules of an inquiry under that Code. Therefore there can be a doubt that even under sec. 88D(1)(iv) the State Government was bound to hold an inquiry in accordance with the provisions of the Mamlatdar Courts Act. Sec. 15(1) of the said Act in terms provides that where either party requires any witness to be summoned to appear on the day of hearing the Mamlatdar shall issue summons for the purpose when an application is made. In view of this express provision the State Government and the Mamlatdar obviously erred in holding that they have no power to issue summons in this inquiry. Thus the most important evidence which the petitioner wanted to lead in the form of municipal record showing the salary drawn by respondent No. 2 has been withheld Therefore on this short ground the petition ought to be allowed.

(3.) Besides the order does not disclose nor the affidavit helps us to find out whether the other important items which were mentioned by the petitioner were taken into account. Even on the basis of the salary of Rs. 650.00 which was accepted by the State Government if the other income of the house rent of Rs. 800.00 and of the rent of the land in question of Rs. 157.00 were included the income of respondent No 2 clearly exceeded Rs. 1500.00. The State Government has also taken into account some certificate of the Chief Officer at the back of the petitioner. In such a judicial inquiry even though the data may be collected by the subordinate officers the State Government must allow the parties a full opportunity to lead their evidence by helping them by i sue of process as provided under the Mamlatdar Courts Act and the relevant material must be obtained after hearing the parties and the decision must be reached on these objective facts. Mr. Patel rightly relied upon the decision of Bakshi J. in Special Civil Application No. 901 and 835 of 1963 decided on 19-3-68 where my learned brother held that this inquiry is a judicial inquiry on the objective facts and it was not an administrative inquiry based on the subjective satisfaction of the State Government. My learned brother held that the petitioner ought to have been heard by the Under Secretary after the data was collected by him by disclosing the report to the petitioner. No material at the back of the petitioner should be utilised and any other material which is sought to be relied upon must be used only after the petitioner was given an opportunity to explain the same and the principles of natural justice must be followed in such an inquiry. The order in the present case is completly a perfunctory order and the petitioner has not been given any opportunity to lead evidence on this vital question about the income of respondent No. 2 exceeding Rs. 1500.00. The petition must therefore be allowed The order of the State Government is quashed and the matter shall go back to the State Government for deciding the petitioners application for cancellation of the certificate in accordance with law in the light of the above observations Rule is made absolute. There shall be no order as to costs in the circumstances of the case. The matter should be expeditiously disposed of as it has been sufficiently delayed. Petition allowed