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SCA/10655/2005 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10655 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
NARENDRABHAI
DAHYABHAI DESAI & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
==========================================
Appearance
:
MR
DHIRENDRA MEHTA for
Petitioner(s) : 1 - 2.
MR. P.D.BHATE, ASST.GOVERNMENT PLEADER for
Respondent(s) : 1-2.
NOTICE SERVED BY DS for Respondent(s) : 1 -
2.
None for Respondent(s)
: 3,
MRS NISHA M PARIKH for Respondent(s) : 3.2.1,3.2.2 -
4.
UNSERVED-EXPIRED (N) for Respondent(s) : 3.2.3
UNSERVED-REFUSED (N) for Respondent(s) :
5,
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 05/09/2005
ORAL
JUDGMENT
In
this petition under Article 227 of the Constitution of India, the
petitioners-original landlords have challenged the legality and
validity of the judgment and order passed by the Gujarat Revenue
Tribunal dated 30.11.2004 passed in Revision Application No.
TEN.B.S. 156/91 in allowing the said Revision Application and
quashing and setting aside the order passed by the Deputy Collector,
Navsari dated 7.6.91 and restoring the order passed by the Mamlatdar
& ALT, Gandevi dated 18.1.90 in holding that the respondent No.3
herein is entitled to get the possession of the lands in question
under Section 32(1-B) of the Bombay Tenancy Act and further
directing the petitioners to hand over the possession of the lands
in question.
The
dispute is with regard to the lands bearing Survey No.746 paiki
admeasuring 14-Gunthas of land and Survey No.772 paiki admeasuring
14-Gunthas of land situated at village Amalsad, Taluka Gandevi,
District Navsari. The father of the respondent No.3-Govindbhai Gohil
was cultivating the aforesaid lands in question on 1.4.55 and he was
dispossessed without following any procedure as required under
Section 29 of the Act and therefore, the heirs of the
tenant-Govindbhai Gohil i.e. respondent No.3 herein applied for
getting the possession of the lands under Section 32(1-B) of the
Bombay Tenancy Act and the Mamlatdar & ALT, Gandevi by two
separate orders dated 18.6.79 and 18.8.79 directed the petitioners
to hand over the possession of the aforesaid lands in question by
holding that though the tenant was in possession of the aforesaid
lands in question as on 15.6.55, he was dispossessed without
following any procedure and illegally. The said orders came to be
passed under Section 32(1-B) of the Bombay Tenancy Act. It appears
that thereafter the aforesaid two orders came to be challenged
before the Deputy Collector (Appeals), Navsari by two separate
Revision Applications and the proceedings were remanded to the
Mamlatdar & ALT, Gandevi directing the Mamlatdar & ALT,
Gandevi to hold inquiry ‘whether the tenant was in fact tenant as on
15.6.55 or not’ and ‘when the possession was taken over.’ The
aforesaid two orders came to be challenged before the Gujarat
Revenue Tribunal being Revision Application Nos. TEN.B.S.295/82 and
TEN.B.S.296/82 and both the Revision Applications came to be
dismissed and the order of remand came to be confirmed. Thereafter,
on holding necessary inquiry and on appreciation of evidence, the
Mamlatdar & ALT, Gandevi held that the tenant was cultivating
and/or in possession of the lands in question as on 15.6.55 and that
he was dispossessed illegally without following any procedure and
therefore, the applicant i.e. respondent No.3 herein is entitled to
possession of the lands in question under Section 32(1-B) of the
Bombay Tenancy Act and therefore, directed the petitioners to hand
over the possession of the lands in question to the respondent No.3
herein. The said order came to be passed by the Mamlatdar & ALT,
Gandevi on 18.1.90. Being aggrieved and dissatisfied with the order
passed by the Mamlatdar & ALT, Gandevi dated 18.1.90, the
petitioners preferred appeal before the Deputy Collector, Navsari
being Tenancy Appeal No.54/90 and the Deputy Collector, Navsari by
its judgment and order dated 7.6.91 allowed the said appeal and
quashed and set aside the order passed by the Mamlatdar & ALT,
Gandevi. Being aggrieved and dissatisfied with the judgment and
order passed by the Deputy Collector, Navsari dated 7.6.91 passed in
Tenancy Appeal No.54/90, the respondent No.3 herein preferred
Revision Application being Revision Application No. TEN.B.S.156/91
before the Gujarat Revenue Tribunal and the Gujarat Revenue Tribunal
by its judgment and order dated 30.11.2004 allowed the said Revision
Application quashing and setting aside the judgment and order passed
by the Deputy Collector, Navsari dated 7.6.91 passed in Tenancy
Appeal No.54/90 and restoring the order passed by the Mamlatdar &
ALT, Gandevi dated 18.1.90 by which the petitioners were directed to
hand over the possession of the lands in question to the respondent
No.3 under Section 32(1-B) of the Bombay Tenancy Act. Being
aggrieved and dissatisfied with the judgment and order passed by
the Gujarat Revenue Tribunal dated 30.11.2004 passed in Revision
Application No.TEN.B.S.156/91, the petitioners have preferred the
present Special Civil Application under Article 227 of the
Constitution of India.
Shri
Dhiren Mehta, learned advocate appearing on behalf of the
petitioners has vehemently submitted that the Gujarat Revenue
Tribunal has materially erred in holding that the tenant was in
possession of the lands in question as on 15.6.55 and that he was
dispossessed without following any procedure. He has also further
submitted that the application submitted by the respondent No.3
herein under Section 32(1-B) of the Bombay Tenancy Act was barred by
limitation because as per Section 32(1-B) of the Act, he was
required to submit the application within a period of one year and
therefore also the application submitted by the respondent No.3 was
required to be dismissed. He has relied upon the deposition of the
original landlords as well as Premabhai Gohil the son of the
original tenant as well as other persons in support of his
submission that the possession of the lands in question was not with
the original tenant i.e. Govindbhai Gohil as on 15.6.55 but the
original tenant had voluntarily surrendered the possession of the
lands in question in the year 1954 i.e. prior to 1955 and
therefore, the respondent No.3 is not entitled to the possession of
the lands in question under Section 32(1-B) of the Bombay Tenancy
Act. Shri Mehta, learned advocate appearing on behalf of the
petitioners has also further submitted that the Gujarat Revenue
Tribunal has not properly appreciated the finding given by the
Deputy Collector, Navsari. Shri Mehta, learned advocate appearing on
behalf of the petitioners has also relied upon the statement of
the brother of the original tenant to the effect that he was not in
possession of the land in question as on 15.6.55. He has further
submitted that in fact, the Deputy Collector, Navsari has
specifically held on appreciation of evidence that the tenant was
not in possession of the lands in question as on 15.6.55 and/or on
1.4.57 and therefore, the Revisional Authority is not justified in
interfering with the same. Thus, the judgment and order passed by
the Gujarat Revenue Tribunal is assailed mainly on two grounds
that the application under Section 32(1-B) of the Act is submitted
after a period of limitation and that the possession was already
handed over to the original land owner prior to 15.6.55 and that as
the possession of the lands in question was not with the tenant as
on 15.6.55, the respondent No.3 is not entitled to the possession of
the lands in question under Section 32(1-B) of the Bombay Tenancy
Act.
So
far as the contention on behalf of the petitioners to the effect
that as the application under Section 32(1-B) of the Act was
submitted after a period of one year of dispossession and therefore,
the application was not maintainable is concerned, this Court in
case of Rasulmiya Rehmanmiya V/s. Patel Lalbhai Shankerbhai
reported in 24(1) GLR Page-714 has specifically held
that even the Mamlatdar & ALT, has suo-motu powers to initiate
the proceedings under Section 32(1-B) of the Act where there is no
time limit fixed and therefore, it is to be treated that the
Mamlatdar & ALT, has initiated the suo-motu powers and
therefore, in view of the judgment of the learned Single Judge of
this Court to which this Court is informed that the said judgment
was thereafter confirmed by the Hon’ble Supreme Court, and
therefore, the contention of the petitioners that the respondent
No.3 is not entitled to any relief as the application under Section
32(1-B) was submitted after a period of one year, cannot be
accepted. So far as the finding given by the Gujarat Revenue
Tribunal that the original tenant was in possession of the lands in
question as on 15.6.55 is concerned, the Gujarat Revenue Tribunal as
well as the Mamlatdar & ALT, Gandevi have relied upon the
village Form No.7/12 in which upto 1957 the name of the original
tenant was mentioned. The Gujarat Revenue Tribunal as well as the
Mamlatdar & ALT, Gandevi have also considered the fact that in
the year 1957 the original landlords themselves submitted an
application for getting the possession back which was subsequently
withdrawn, meaning thereby, even as per the landlords themselves the
original tenant was in possession of the lands in question even in
the year 1957. Shri Menta, learned advocate appearing on behalf of
the petitioners is not in a position to explain withdrawal of the
application submitted by the original landlords in the year 1957.
Shri Mehta, learned advocate appearing on behalf of the petitioners
has relied upon the statement of the brother of the original tenant
in support of his submission that even it is admitted by him that
Govindbhai Gohil was in possession of the lands in question as on
15.6.55 and so far as the contention that the possession was
already handed over much earlier is concerned, it is required to be
noted that it is the statement of the brother of the tenant and not
of the tenant himself and the same is not binding upon the tenant.
Even otherwise, as stated above, on the basis of the evidence on
record it is very much clear that the Govindbhai Gohil was in
possession of the lands in question as on 15.6.55. It is required to
be noted that there is nothing on record to show that the tenant was
dispossessed and/or the possession was taken over from him after
following due procedure as required under Section 29 read with
Section 5 of the Bombay Tenancy Act. When the tenant is dispossessed
without following any procedure as required under Section 29 read
with Section 5 of the Bombay Tenancy Act, even if the same is
volunteered, the tenant is required to hand over the possession and
restore the possession as per Section 32(1-B) of the Bombay Tenancy
Act. In view of the above, it cannot be said that the Gujarat
Revenue Tribunal has committed any illegality and/or the judgment
and order passed by the Gujarat Revenue Tribunal in restoring the
order passed by the Mamlatdar & ALT, Gandevi is so perverse
which requires interference of this Court exercising powers under
Article 227 of the Constitution of India. On going through the
entire record and the order passed by all the three authorities
below even this Court is satisfied that the Mamlatdar & ALT,
Gandevi has rightly held that the respondent No.3 is entitled to the
possession under Section 32(1-B) of the Bombay Tenancy Act and the
Mamlatdar & ALT, Gandevi has rightly passed order directing the
petitioners to hand over the possession back to the respondent No.3
and the same is rightly confirmed by the Gujarat Revenue Tribunal.
For
the reasons stated above, there is no substance in the present
Special Civil Application and the same is required to be dismissed
and is, accordingly, dismissed. Ad-interim relief, if any, granted
earlier stands vacated.
(M.R.Shah,
J.)
kdc.
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