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Gujarat High Court
Judgename :P.N.BHAGWATI, J.M.SHELAT
BHIKHABHAI JETHABHAI - Appellant
Versus
J.V.VYAS,additional COLLECTOR - Respondent
S.C.A. 873 of 1960
Decided On : 03/07/1963
Bombay Agricultural Debtors Relief Act 1947 – Bombay Tenancy and Agricultural Lands Act 1948 – Tenancy Act – Section 32d, 4, 70 (b), 2 (18), 85, 67, 69, 68 – Constitution of india – Article 227 – Agreement – Compensation for loss – Reimbursement – Notice for termination – Mortgage – Tenancy agreement – Petitioners are owners of land bearing S. No. 339 and admeasuring 19 Acres and 38 Gunthas situate in village – Land was purported to be sold by petitioners to one for price of Rs. 1261. 00 – Though ostensibly a sale it was in reality a mortgage effected by petitioners in favour of Ambelal Jaduram to secure an existing debt to extent of Rs. 1261. 00 – Even after this transaction possession of land remained with petitioners – Additional Collector in result allowed appeal set aside order of Tribunal and directed Tribunal to proceed further with inquiry for fixing purchase price and also ordered than possession of land be restored to 2nd respondent – Petitioners thereupon preferred present petition in this Court challenging order of Additional Collector – Held, Same person may occupy both the positions viz. that of a Tribunal under sec. 32g and that of a Mamlatdar under sec. 70 (b) but in one case he would be exercising the jurisdiction of a Tribunal under sec. 32d and in the other he would be exercising the jurisdiction of a Mamlatdar under section 70 (b) – Two authorities would be entirely distinct and independent authorities possessing distinct and independent jurisdictions and it is no argument to say that merely because the same person might be constituting both the authorities the order of one authority can be equated with the order of other – Paced with this conclusion Mr. M. H. Chhatrapati submitted that even if we were inclined to set aside orders of Tribunal and Additional Collector we should impose a condition that possession of land should be restored by petitioners to 2nd respondent – Short answer to submission is that court have no such jurisdiction – Either court set aside orders of Tribunal and Additional Collector in exercise of our power under Article 227 or we refuse to do so – Court has no power to impose any condition such as one suggested by Mr. M. H. Chhatrapati – Petition Allowed
( 1 ) THE petitioners are the owners of land bearing S. No. 339 and admeasuring 19 Acres and 38 Gunthas situate in village Vanesa Palsana Taluka Surat District. On 27th June 1939 the land was purported to be sold by the petitioners to one Ambelal Jaduram for the price of Rs. 1261. 00. Though ostensibly a sale it was in reality a mortgage effected by the petitioners in favour of Ambelal Jaduram to secure an existing debt to the extent of Rs. 1261. 00. Even after this transaction the possession of the land remained with the petitioners until 1945-46. It appears that the petitioners were unable to pay interest on the mortgage debt to Ambelal Jaduram and possession of the land was therefore handed over to Ambelal Jaduram in or about 1946-47. Ambelal Jaduram thereafter inducted the 2nd respondent on the land. According to the petitioners it was in July 1951 that the 2nd respondent was brought in as a tenant on the land by Ambelal Jaduram but this was disputed on behalf of the 2nd respondent who alleged that he came as a tenant on the land sometime in 1947. For the purpose of the present petition however it is not necessary to decide this controversy. The land originally formed part of the territories of the quondam Baroda State After the merger of the Baroda State the Bombay Tenancy and Agricultural Lands Act 1948 ( hereinafter referred to as the Tenancy Act ) and the Bombay Agricultural Debtors Relief Act 1947 were both applied to the territories of the former Baroda State with effect from 1st August 1949. The petitioners thereafter made an application to the appropriate Court under the Bombay Agricultural Debtors Relief Act 1947 for a declaration that the purported sale of the land in favour of Ambelal Jaduram was in reality a mortgage and for adjustment and redemption of the mortgage debt including recovery of possession of the land from Ambelal Jaduram The application was resisted by Ambelal Jaduram. The Court trying the application held by an order dated 28th March 1957 that the transaction though ostensibly a sale was in fact a mortgage and ordered accounts to be taken in order to ascertain the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage. Ambelal Jaduram was aggrieved by this order passed by the Trial Court and se accordingly preferred an appeal in the District Court Surat. The appeal was dismissed by the District Court Surat on 30th June 1958. It appears that in the meantime accounts were taken between the parties and the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage was ascertained and a final award was passed by the Court on 21st July 1958 under which an order for possession of the land was made in favour of the petitioners on the petitioners paying up the amount so ascertained. The petitioners thereafter paid up the amount mentioned in the final award and claimed possession of the land from Ambelal Jaduram. Since possession of the land was not handed over by Ambelal Jaduram to the petitioners in pursuance of the final award the petitioners made an application on 3rd November 1958 for recovering possession of the land in execution of the final award. At this stage the 2 respondent made an application to the executing Court for being joined as a party respondent to the execution application on the ground that he was in possession of the land as a protected tenant and that possession of the land could not therefore be ordered to be handed over to the petitioners. This objection raised on behalf of the 2nd respondent was negatived by the executing Court which took the view following the decision of the High Court of Bombay in Kanji Kurji v. Kala Gopal 59 Bom. L. R. 846 that even though the 2nd respondent was brought in as a tenant by Ambelal Jaduram yet Ambelal Jaduram being a mortgagee the 2nd respondent could not be regarded as a deemed tenant under sec. 4 of the Tenancy Act and his interest iii the land having come to an e
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