JUDGMENT
J.B. Mehta, J.
1. The petitioner tenant has in these two petitions challenged the order of the Gujarat Revenue Tribunal disposing of his revision applications in the two proceedings under Sections 32P and 32G respectively by the common order, dated December 9, 1963. As both the petitions involve common questions of law and facts they are disposed of by this common order.
2. The Lands Tribunal instituted an inquiry under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as ‘the Act’, and in pursuance of the notice issued, the petitioner appeared on July 14, 1959. The matter was adjourned to August 3, 1959, when it was further adjourned to October 6, 1959. On that day, the parties were absent and the Lands Tribunal recorded the statement of the person and kept the matter for orders. On October 15, 1959, the Lands Tribunal made a declaration under Section 32G (3) that the tenant was not willing to purchase the land and that the purchase was ineffective. It is the case of the petitioner that this order passed against him was not communicated, while the case of the opponents 1 and 2 is that as per the outward register, the order was intimated on November 7, 1959. The Revenue Tribunal has not gone ‘into this question as to the date of communication. The notice dated August 14, 1962, was issued thereafter under Section 32P to the petitioner and was served on him on August 30, 1962. The petitioner having learnt that the Lands Tribunal had passed the order against him under Section 32G, he applied for review by the application, dated May 10, 1962, as no such order was communicated to him declaring the purchase ineffective. This review application does not appear to have been entertained and no order has been passed thereon. The Mamlatdar, acting as the delegate of the Collector, from time to time adjourned the inquiry started by him under Section 32P. It was on the last occasion on January 7, 1963, that when the petitioner was absent, the statement of the landlord was recorded and the Mamlatdar passed the order, dated January 8, 1963, for delivery of possession to the landlord as they required the same for bonafide personal cultivation. The petitioner-tenant filed an appeal on February 4, 1963, which was dismissed by the Prant Officer on June 10, 1963, on the ground that it was time-barred and the delay could not be condoned. Besides this appeal against the order under Section 32G, dated October 15, 1959, the tenant filed another appeal against the order under Section 32P to the Collector which was found not maintainable as the Prant Officer had acted as the delegate of the Collector. Thereafter the revision applications were entertained by the Tribunal on July 9, 1963. The Revenue Tribunal has dismissed the revision application against the order under Section 32G on the ground that the Prant Officer rightly held that the appeal of the petitioner-tenant was time-barred. In the other revision application against the order under Section 32P, the Tribunal confirmed the order of the Prant Officer so far as the land was ordered to be surrendered to the landlord. The order of delivery of possession was, however, quashed and the matter was remanded on the ground that as the mandatory requirement of Section 32P (3) was not complied with for determining the amount refundable to the tenant after giving him an opportunity to be heard. It is this order, dated December 9, 1963, by the Tribunal that is challenged in these two petitions:
3. Section 32G(1) of the Act provides that:
(1) As soon as may be after the tillers’ day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon–
(a) all tenants who under Section 32 are deemed to have purchased the lands,
(b) all landlords of such lands, and
(c) all other persons interested therein, to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear before it on the date specified in the public notice.
(2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant.
(3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective:
Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same:
Thereafter Section 32P provides as under:
(1) Where the purchase of any land by tenant under Section 32 becomes ineffective under Section 32G or where a tenant fails to exercise the right to purchase the land held by him within the specified period under Sections 32P or 32G, the Tribunal may suo motu or on an application made in this behalf and in cases other than those in which the purchase has become ineffective by reason of Section 32G or 32N, after holding a formal inquiry direct that the land shall be disposed of in the manner provided in Sub-section (2).
(2) such direction shall provide–
(a) that…the former tenant be summarily evicted;
(b) that the land shall, subject to the provisions of Section 15, be surrendered to the former landlord;
(c) that if the entire land or any portion thereof cannot be surrendered in accordance with the provisions of Section 15, the entire land or such portion thereof, as the case may be, notwithstanding that it is a fragment, shall be disposed of by sale to any person in the order or priority mentioned therein….
(3) Where any land is to be surrendered in favour of the former landlord under Sub-section (2), the former landlord shall not be entitled to the possession thereof until any amount refundable to the former tenant is refunded to him or recovered from the former landlord; and until such refund or recovery is made, the former tenant shall continue to hold the land on the same terms on which it was held by him previously.
On the basis of these two relevant sections Mr. Solanki challenged in the first petition the order under Section 32B. The power of the collector to dispose of the land not purchased by the tenant under Section 32P(1) arises only when the purchaser of any land held by the tenant under Section 32 becomes effective. This power to be judicially exercised while holding an inquiry and, therefore, the mamlatdar while exercising these powers under Section 32P(1) must first determine whether the mandtaory conditions as to the purchase having become ineffective was satisfied before on disposing of the land in question. In the present case, the purchase was declared to be ineffective under Section 32G(3) on the ground that the tenant failed to appear on the last date on October 6, 1959, by the order of the Lands Tribunal, dated October 15, 1959. In case of such an order, the proviso to Section 32G in terms provides that if the order is passed in default of appearance of any party, that Tribunal shall communicate the said order to the parties or the party in default would have a right to apply for review of the order within 60 days. Therefore, Section 32G provides for this mandatory requirement that when the order is passed declaring the sale ineffective on the ground of default of appearance, the order shall be communicated by the Lands Tribunal to the parties who would get thereby the right of review. In the present case, the Revenue Tribunal has in terms observed that it was not necessary to go into the question whather the order was communicated or not. The petitioner had filed a sworn affidavit that the order was never communicated to him. No attempt was made to rebut the statement on oath by the petitioner-tenant and what was sought to be relied upon was only some-entry in the outward register showing same intimation of copies on November 7, 1959. This must be a mandatory requirement, as the non-compliance thereof would result in the party losing the important right of review. Therefore, there would be an effective order until the same was duly communicated and, the purchase could not become ineffective until this mandatory procedure was complied with. The Prant Officer and the Revenue Tribunal were, therefore, obviously wrong in disposing of this revision application without going into this essential question whether the purchase had actually become ineffective by due compliance with the mandatory requirement of Section 32G(3) read with the proviso. In the present case, even the review application filed by the petitioner on September 10, 1962, has never been disposed of by any effective order. Therefore, the order under Section 32P of further disposal by surrender to the landlord was clearly ultra vires as the mandatory requirement of the purchase becoming ineffective was not as yet complied with. This order under Section 32P should have been therefore completely quashed by the Revenue Tribunal. Mr. Solanki is right in contending that the Revenue Tribunal failed to exercise its jurisdiction in not quashing the order under Section 32P on this ground. The learned Assistant Government Pleader Mr. Nanavati and Mr. Barot argued that the appeal under Section 32G having been disposed of and even the revision application having been dismissed on the ground that the appeal was time barred, the Revenue Tribunal was right in treating the purchase as ineffective and in ordering further disposal. Even if the order which is a void order or a nullity is confirmed in appeal it would still remain a nullity. Besides the Revenue Tribunal and the appellate authority had not considered the question that there would be no question of limitation when there was no evidence of the actual communication of the order and where even the review application filed by the petitioner-tenant was not disposed of. Therefore, there is no substance in the contention of the apponents that the land can be further disposed of under Section 32P on the basis of the order of the Lands Tribunal dated October 15, 1957, declaring the purchase ineffective. Therefore, on that shore ground the earlier Special C.A. No. 194/64 ought to be completely allowed by quashing the order under Section 32P.
4. Mr. Solanki has, however, challenged also in the other petition the order under Section 32G itself. The Revenue Tribunal holds that the Prant Officer was right in treating the appeal against this order under Section 32G by the tenant as time-barred and in refusing to condone delay. He was also justified in not entertaining the review application. The Revenue Tribunal has failed to consider the question that the Lands Tribunal had no power to declare the purchase ineffective in this mechanical manner, even when the tenant was on all occasions not willing to purchase the land. The Revenue Tribunal was also wrong in not deciding the question whether the order was communicated at all while disposing of the question of limitation. It should be kept in mind that the inquiry under Section 32G is a statutory inquiry enjoined upon the Lands Tribunal itself. The nature of this inquiry was explained by the Division Bench, consisting of Bhagwati J. (as he then was) and Shelat J., in Haji Begum v. Raising VI G.L.R. 810 at page 815. The Division Bench held that this was not an adversory system but an inquisitorial inquiry, where the Lands Tribunal could not refuse to determine the price on the ground that no material had been placed before it by the parties or that neither the landlord nor the tenant appeared or led evidence relating to the factors set out by the Legislature. In Abdul v. State VI G.L.R. 730, the Division Bench, consisting of Shelat C.J. (as he then was) and Shah J., also explained the scheme of Section 32G by pointing out at page 740 that Section 32G did not contemplate only one order of determining the purchase price, but several orders before the final stage of determining the purchase price was reached. From this scheme which has been explained by both these decisions, it is obvious that a very important duty is cast by the Legislature on the Lands Tribunal to hold this inquisitorial inquiry. When the notice is issued under Section 32G the Tribunal has to call upon the tenant or landlord and other persons to appear on the date specified. Under Sub-section (3), the Tribunal is required to record a statement of the tenant in the prescribed manner whether he was or was not willing to purchase the land held by him as tenant. It is in this context that we have to interpret Sub-section (3) of Section 32G. The Lands Tribunal is enjoined to make a written declaration that the tenant is not willing to purchase the land and that purchase is ineffective. This declaration of this statutory authority would completely destroy the compulsory purchase which took place on the tillers’ day by the fiat of the Legislature under Section 32. When such an important step is being taken, the Legislature not only envisages the written declaration by the statutory authority that the purchase is ineffective, but the further declaration to the effect that the tenant is not willing to purchase the land. This declaration has to be made only in two cases: (1) When a tenant fails to appear in accordance with the aforesaid notice or (ii) when he makes a statement that he is not willing to purchase the land, which has to be recorded as per the mandatory safeguard provided under Section 32G(2) and the rules in that connection. Therefore, there can be no doubt that this declaration has to be made in a judicial manner after realising the importance of this inquiry and the effect of this order on the vested rights of the tenant. Even when the tenant makes a statement that he is not willing to purchase the land, the statement has to be duly recorded under Section 32G in the prescribed manner after explaining the tenant the consequences of his act. All these statutory safeguards are kept by the Legislature so that the illiterate tenants may be made to understand their rights and their statements as to willingness or unwillingness may be properly recorded. The alternatives envisaged by Sections 32G(3) are the express statement that the temant is not willing to purchase the land, and the failure of the tenant to appear in accordance with the statutory notice under Section 32G(1). Both these alternatives have to be explored with a view to find out whether the tenant is not willing to purchase the land, so that the said essential ingredient can be embodied in the written declaration, which is finally to be made declaring the purchase ineffective. Therefore, in the context of this Section 32G(3) the failure to appear can never be equated merely with non-appearance of the tenant on any one single day. This is not the section by way of any penalty for non-appearance. The alternative clause is provided in Section 32G(3) to meet only those cases where the tenant’s failure to appear would furnish evidence of his unwillingess to purchase. In the present case, the facts clearly disclose that in accordance with the notice under Section 32G(1) the tenant straightway appeared on July 14, 1959, but his statement could not be recorded on that date and the matter was adjourned to August 31, 1959. The Rojnama of that adjourned date does not mention how the adjournment was given but it is obvious that the parties were intimated at the very time and not by a postal intimation and, therefore, the tenant must have been present. It is only on the last date, October 6, 1959 that the tenant was absent and so was the landlord, and the Lands Tribunal recorded the fact of non-appearance of the parties by examining the peon and straightway proceeded to pass this mechanical order on October 15, 1959 to the effect that the tenant was not willing to purchase the land and that, therefore, the purchase was declared ineffective. Thus, the Lands Tribunal has merely mechanically passed the order without applying its mind to this statutory function and duty which had to be performed in a judicial manner. Both Mr. Barot and Mr. Nanavati argued that for the procedure an analogy had to be drawn from the Civil Procedure Code, or the Mamlatdar Courts Act or the Bombay Land Revenue Code. The Mamlatdar would always have a power to adjourn the proceeding if he had no time to record a statement on the very first day, and if the party failed to appear on the adjourned date, the inquiry could be ex-parte disposed of, holding that the tenant was not willing to purchase. It is true that there is no specific procedure for this inquisitorial inquiry and even if Rule 44 were to apply embodying the provisions of the inquiries as under the Land Revenue Code, there is no specific procedure on this question. It is, therefore, not open to Mr. Barot to contend that the Civil Procedure Code applies, including 0. 9 R. 9. The whole argument is wholly misconceived. They are only right to the extent that the Mamlatdar could have adjourned the inquiry, but that by itself cannot help us in the proper interpretation of Section 32G(3) in its context of the two alternatives which are to be explored for recording a finding that the tenant is not willing to purchase the land. Such a finding can be reached on the basis of an express statement voluntarily given by the tenant and duly recorded by the authority, or on the basis that the tenant failed to appear. The tenant’s failure to appear, therefore, must be only such, which leads to this necessary inference that the tenant was not willing to purchase land and which can never arise in such cases, where the tenant appeared on the relevant dates and was absent only on the last date, when in fact both the parties were absent.
5. Mr. Nanavati and Mr. Barot next argued that in any event this was the question which can be dealt with by the appellate forum. Once the appeal was held to be time-barred and even the revisional forum confirmed the said finding, the order could not now be challenged. There is no substance in this contention. If the Lands Tribunal ignored the mandatory provisions of Sections 32G(3) and passes the order mechanically declaring that the tenant was not willing to purchase the land and the purchase was ineffective, it clearly fails to comply with the condition precedent for exercising this statutory power and the order is a complete nullity. In cases of such an order which is a nullity, even if it is confirmed in appeal, it still continues to be a nullity. Mr. Solanki is also right that no question of limitation could arise in the present case for the simple reason that the Legislature had provided that such orders under Section 32G(3) for default of appearance in this sense must be communicated to the tenant so that he could apply for review within 60 days. In the present case the tenant made a statement on oath that the order was not com municated to him and no attempt was made to rebut this evidence of the tenant, except by showing some entry of the outward register that the copy of the order was despatched without examining any person in this connection. In fact the Collector cursorily went into this question without considering the effect of the proviso and the Revenue Tribunal even refused to go into this question. There is also further evidence on the record that the petitioner tenant in this case not only contended that no order was communicated to him, but he had filed the review application which was not disposed of by any effective order. Therefore, unless the order under Section 32G was proved to have been communicated and unless an effective order was passed on this review application as provided by the proviso to Section 32G(3) there could not be any question of limitation. Therefore, the lower authorities as well as the Tribunal were completely in error in sustaining this order under Section 32G, which was mechanically passed on the ground that the tenant failed to appear on a single day as if it was a penal order, and in not interfering with it on the ground that the appeal was time-barred.
6. Both Mr. Nanavati and Mr. Barot argued that the proviso to Section 32G(3) itself provides a complete Code to meet all situations as it gave a right of review in such cases where the order was made for default of appearance of any party. This proviso only gives locus paenitantiae to the tenant who has completely failed to appear before the statutory authority and whose failure to appear leads to the necessary inference that he is not willing to purchase. Even in such a case of gross default, the Legislature provides a locus paenitantiae by giving the affected party a right to apply for review. That proviso could never apply to the facts of this case, where the tenant on all occasions appeared before the Tribunal and he only failed to appear on the last day, which could not lead to any inference that he was not willing to purchase. Merely because the statutory authority had no time to record the tenant’s statement and the matter had to be adjourned, it could not be held that the tenant was not willing to purchase, only because he failed to appear on one single date. There would be no question of invoking the proviso as the Lands Tribunal lacked the authority to pass such an order against a tenant who had shown on all occasions his willingness to purchase by-appearing before the authority and by pursuing the inquiry with all his zeal.
7. Therefore, the orders of the Revenue Tribunal as well as of the lower authority even under Section 32G must be quashed. Therefore the rule must be made absolute in both the petitions by quashing the orders of the Revenue Tribunal as well as of the lower authority under Sections 32G and 32P and the matter must now go back to the Lands Tribunal for holding the statutory inquiry under Section 32G from the stage of recording the statement of the concerned tenant. Rule accordingly made absolute in both the petitions. The costs of both the petitions shall be paid by the opponents.
