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1970 Supreme(Guj) 74

Gujarat High Court
Judgename :D.A.DESAI
DAHYABHAI SOMABHAI - Appellant
Versus
RAMAJI KESARJI - Respondent
S.C.A.1357 of 1966
Decided On : 07/21/1970

Advocates Appeared: H.B.VAISHNAV, J.M.PATEL

Headnote:

Constitution of India - Article 227 - Bombay Tenancy and Agricultural Lands Act 1948 - Sec. 84b (2) - Petition - Tenancy - Suit - Possession - Petitioners appeared in the suit and raised a contention that the Mamlatdars Court has no jurisdiction to decide the question of tenancy and has accordingly no jurisdiction to entertain the suit - Petitioners have challenged the aforementioned two decisions of the Mamlatdar and the District Deputy Collector in this petition - Held, It is these petitioners who claim relief by way of certiorari as against the person who is adjudged to be a tenant of the land and who it appears must have been deprived of the possession without due process of law - Petitioners such as these moved this Court by way of petition under Art. 227 and have invoked the jurisdiction of this Court for relief by way of certiorari - If this Court exercised jurisdiction in their favour it would be perpetuating something which has been done in defiance of Statute like the Tenancy Act and which was enacted as a measure for advancement of social justice - The effect of granting relief would be to deny the respondent what may justly be due to him - Would it then be proper to exercise this extra-ordinary jurisdiction in favour of 0 petitioners ? - As stated earlier the jurisdiction conferred upon this Court to issue prerogative writ should be exercised in aid of justice and not to promote technicality and even if the impugned order appears to be invalid it is not unjust - Therefore Court is not inclined to grant relief in this petition - Petition dismissed.

D. A. DESAI, J.

( 1 ) THIS petition under Article 227 of the Constitution of India is directed against the judgment and order of the Mamlatdar Gandhinagar in Mam. Court Act Case No. 16/65 pronounced on 19th April 1966 and confirmed by the Prant Officer Gandhinagar in Revision Application No. 6/66 on 30th September 1966. One Mafatlal Punamchand was the owner of the lands bearing S. No. 1137 admeasuring 1 acre 27 gunthas and S. No. 1138 admeasuring 1 acre and 27 gunthas situated within the revenue limits of Isanpur Mota in Gandhinagar District. Mafatlal Punamchand the owner of the lands sold the same to the petitioners by a sale deed dated 26th April 1956 for consideration of Rs. 1350. 00. The petitioners say that they came into possession of the lands on the date of the sale and since then they are in continuous possession except for a short period in 1964 As this sale was effected on 26th April 1956 that is after 15th June 1955 and before 1st April 1957 when the Amending Act of 1955 came into force the Mamlatdar held an enquiry whether the sale was in contravention of secs. 63 or 64 of the Bombay Tenancy and Agricultural Lands Act 1948 as it stood before the commencement of the Amending Act 1955. The Mamlatdar declared the sale to be invalid by his order dated 9th December 1958. Unfortunately it appears that after declaring the sale invalid the Mamlatdar did not proceed to pass the consequential order as required by sec. 84b (2) of the Bombay Tenancy and Agricultural Lands Act 1948 which requires that the Mamlatdar shall direct that the possession of the land be restored to the person from whom it was purchased and the amount of consideration paid if any shall be returned by the purchaser to the vendor. Present respondent Ramaji Kesraji claimed to be the tenant of this land. It appears that his name appeared as tenant in the Government records. The Agricultural Lands Tribunal commenced an enquiry under sec. 32g of the Bombay Tenancy and Agricultural Lands Act 1948 to determine the price. In the course of this inquiry the Agricultural Lands Tribunal held that respondent was not the tenant of the land and the proceedings were dropped by his order dated 30th January 1960 The petitioners have stated that no appeal or revision is preferred against this order. The Talati of village Isanpur Mota in execution of the order declaring the sale invalid proceeded to take possession of the land from the petitioners and handed over the same to the respondent on 3rd April 1964. The petitioners thereupon approached the Mamlatdar on 21st April 1964 contending that they have been unlawfully dispossessed by the Talati and the Talati had no power authority or jurisdiction to recover possession from them. The Mamlatdar by his order dated 19th June 1964 directed that the respondent should hand over possession of the lands to the petitioners and pursuant to this order the petitioners came back into possession of these lands The respondent preferred an appeal against the order of the Mamlatdar directing him to restore possession of the land to the petitioners; but it is not clear as to what has happened to that appeal. The respondent thereafter filed a suit under sec. 5 of the Mamlatdars Courts Act praying for possession of the suit lands. The respondent alleged in the plaint that he is a tenant of the suit lands and that he has been unlawfully dispossessed and the sale in favour of the petitioners having been declared invalid they have no title to the lands and therefore the respondent is entitled to be restored to possession. The petitioners appeared in the suit and raised a contention that the Mamlatdars Court has no jurisdiction to decide the question of tenancy and has accordingly no jurisdiction to entertain the suit. The Mamlatdar negatived this contention and directed that possession of the lands he handed over by the present petitioners to the respondent. The petitioners carried the matter in revision to the District Deputy Collector and Prant












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