DOSHI PRABHUDAS GIRDHARLAL Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THESE are two petitions filed before us under Article 227 of the Constitution of India. As the principal question for determination is common to both the petitions and as it arises out of one application made to the Mam -latdar under the Saurashtra Barkhali Abolition Act, 1951, it is agreed between the parties that the petitions should be hoard together and that there should be one judgment delivered in respect of both the petitions.

(2.) DOSHI Prabhudas Girdharlal and Mohanlal Mathuradas, acting as Vahivat -dars of two separate joint families, made an application before the Mamlatdar for the allotment of 5 aeres andj gunthas of land situate at Mahuva of which they were the Barkhalidars for the purpose of personal cultivation. They had given that land to one Ghanchi Alibhai Gandabhai as a tenant. After the death of Ghanchi Alibhai, his eldest son Balubhai, who is opponent No. 3 in both the petitions, carried on the vahivat of Alibhai Gandabhai Opponent No. 3 as such Vahivatdar was, at the date of the application before the Mamlatdar, a tenant in respect of 80 bighas i.e. 32 acres of land belonging to Gopnathji. The Mamlatdar, who heard the application, took the view that these 80 bighas of land were liable to be taken into account under the provisions of Section 8(1)(a) of the Barkhali Abolition Act, 1951, as opponent No. 3 was in possession thereof as a tenant of Gopnathji and was cultivating the same. He held that the applicant Barkhalidars were entitled to be allotted for personal cultivation the whole of 5 acres and 7 gunthas of land situate at Mahuva in respect whereof the application had been made by them. He accordingly held that they were entitled to an occupancy certificate in respect of the whole of that land. This decision of the Mamlatdar was given on September 11, 1953. The applicants' case is that these 5 acres and 7 gunthas of land had been partitioned between the persons represented by the Vahivatdar Doshi Prabhu -das Girdharlal and the persons represented by the Vahivatdar Mohanlal Mathuradas and that on such partition the northern portion of that land consisting of 6 bighas and 7 gunthas (1 acre being equivalent to 2 bighas) had come to the share of the persons represented by Vahivatdar Doshi Prabhudas Girdharlal and the remaining 6 bighas and 7 gunthas had come to the share of the persons represented by the Vahivatdar Mohanlal Mathurdas. After this partition each Vahivatdar was in separate possession and enjoyment of the land coming to the share of the persons represented by him. On January 1, 1953, an agreement was entered into between opponent No. 3 and the persons doing the vahivat of Gopnathji for the surrender of 80 bighas of land held by opponent No. 3 as the tenant of Gopnathji. On October 8, 1953, these 80 bighas of land were surrendered by opponent No. 3 to Gopnathji. On November 18, 1953, opponent No. 3 as such Vahivatdar being dissatisfied with the order passed by the Mamlatdar on September 11, 1953, filed an appeal before the Deputy Collector. Thereafter on August 31, 1954, opponent No. 3 and his brothers entered into an agreement with Doshi Prabhudas Girdharlal and those represented by him for the purchase of the northern portion of the aforesaid land admeasuring 6 bighas and 7 gunthas at or for the price of Rs. 5,701. That agreement for sale is exh. 3 to the petition. Under the terms of that agreement a sum of Rs. 2,000 was paid as and by way of earnest on the date of the execution of the said agreement. A further sum of Rs. 701 was paid by way of further earnest money on September 4, 1954. Under the terms of the said agreement for sale, it was provided that the appeal that was pending between the parties to that agreement before the Deputy Collector should be withdrawn. On September 10, 1954, an application was made to the Deputy Collector, before whom the appeal was pending, by opponent No. 3 as such Vahivatdar and Doshi Prabhudas Girdharlal for himself and as the Vahivatdar of the joint family represented by him. In that application it was stated that the appellant before the Deputy Collector had entered into an agreement for purchase of the separate share and interest of the family represented by Doshi Prabhudas Girdharlal for a sum of Rs. 5,700 and that a sum of Rs. 2,700 had been paid by way of earnest. It was further stated that the balance of Rs, 3,000 was to be paid by Posh Sud 2nd, Samvat Year 2011 and a conveyance in respect of the said property was to be executed. A copy of the said agreement for sale was produced along with that application. By that application, it was prayed that the Deputy Collector should hold that it was not necessary to proceed with the appeal in relation to the portion of land agreed to be sold as aforesaid, and that proper orders should be passed. It appears that no separate orders were passed on that. application. The appeal was heard and finally decided on November. 10, 1954. The order made by the Deputy Collector in appeal is exh. 5 in the ease. In the course of his judgment the learned Deputy Collector observes that he was required by both the parties to accept the agreement that had been entered into for the sale of northern half of the said land for the sum of Rs. 5,700 and that he should hear and decide the appeal in respect of the other half of that land. The learned Deputy Collector in the course of his judgment further observes that the appellant was the tenant of Gopnathji, that it was no fault of the respondents to that appeal that the appellant had voluntarily surrendered that land, that the appellant could have obtained an occupancy certificate in respect of that land which would have exceeded half an economic holding (one economic holding being of 32 acres of land) and that there was no reason why the respondents to that appeal should suffer. He held that the whole of the 5 acres and 7 gunthas of land should be allotted to the respondents to the appeal. He further held that as there was au agreement entered into in respect of half of that land the right of opponent No. 3 to pre -empt was recognised and that the occupancy certificate should be issued in respect of the remaining half of that land to those represented by Mohanlal Mathuradas. On December 27, 1954, a conveyance was executed in favour of opponent No. 3 and his brothers in respect of 6 bighas and 7 gunthas of land that had been agreed to be sold as aforesaid. That conveyance is exh. 6 in the case.

(3.) ON behalf of Doshi Prabhudas Girdharlal it is urged before us that the Revenue Tribunal acted without jurisdiction in making an order in respect of the land which had been sold to opponent No. 3 and his brothers. It is urged that an order had actually been passed by the Mamlatdar in respect of that land allotting the same to the Barkhalidars and that once an order of allotment had been made, the Barkhalidars were entitled to deal with and dispose of that land in any manner they liked. It is further urged that in any event it had been agreed that the appeal that had been filed by opponent No, 3 as such Vahivatdar before the Deputy Collector in connection with that land should be withdrawn, that thereafter nothing remained to be done with regard to that land by the Deputy Collector and that the Revemie Tribunal had no jurisdiction to pass any orders or give any directions respecting that land. In reply it is urged that a mere order of -allotment under Section 8(1)(a) does not vest in tne person, in whose favour the order is made, any occupancy rights in the property; that until such occupancy rights are acquired, they cannot be dealt with or disposed of; and that it is,only where the order of allotment is followed up by an occupancy certificate that occupancy rights are acquired. It is further urged by way of reply that so far as the Deputy Collector was concerned, the appeal in connection with that land was not, in fact, withdrawn; that the agreement in connection therewith was placed before the Deputy Collector and he was asked to give recognition to the same; that as the appeal was not withdrawn so as to deprive the Deputy Collector of any right to deal with the matter and as he was asked to recognise the sale, he having considered the agreement to be valid, recognised the same and passed the order which be thought proper; and that it was then open to the Revenue Tribunal in revision to interfere with the order so made if the Revenue Tribunal found that the order Avas improperly made.