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Gujarat High Court
Judgename :A.N.Divecha
PATEL UMEDBHAI VITHALBHAI - Appellant
Versus
PANDIT CHANCHALBEN JUGALRAI - Respondent
S.C.A. 3266 of 1980
Decided On : 04/07/1994
The word "transfer" occuring in section 32(1A) -cannot be interpreted in that restricted sense. It will have to be -interpreted in a broader sense including all possible ways of transferring -possession of the land in question by the landlord in favour of any -other person after obtaining its possession from the tenant under -section 31 or 32T of the Tenancy Act after terminating the tenancy. -A parcel of land given by way of an irrevocable licence might not -be a transfer within the meaning of the T.P. Act. It will have however -to be treated as a transfer for the purposes of section 37(1 A) of -the Tenancy Act.
Similarly, handing over possession of the land under -a banakhat will not be a transfer within the meaning of the T.P. Act, -but it will have to be treated as such for the purposes of section -37(1 A) of the Tenancy Act. The emphasised portion in the aforesaid -statutory provision reproduced earlier to the effect ". . . . -has transferred the land to any other person and such transfer is -inconsistent with the ground on which the tenancy of the land was -terminated. . . . ." would also go to show that the word "transfer" -has to be interpreted in the sense broader than its accepted meaning -under the T.P. Act. Any other interpretation of the word "transfer" -occuring in the aforesaid statutory provision contained in section -37(1A) of the Tenancy Act would run counter to the avowed object behind -its introduction in the statute book by Gujarat Act No. 5 of 1973. -
[Para 8]
Bombay Tenancy and Agricultural Lands Act, 1948-Secs. -37(1), 31 & 32T-The Gujarat Tenancy and Agricultural Lands Act, -1973 (Act No. 5 of 1973)-Sec. 37 (1A)-Petitioner a son of -the original tenant-Held, he is interested person-His application -is maintainable.
Since the disputed lands were in possession of respondent -No.2 herein whether by way of transfer or otherwise and since he was -made a party to the proceeding, the application could be said to be -under section 37(1A) of the Tenancy Act and not under section 37 read -with section 39 thereof. Under section 37(1A) of the Tenancy Act, -the First Authority has been empowered to take action suo motu or -on an application made by any interested person. The petitioner as -the son of the original tenant was certainly an interested person. -In that view of the matter, it was not necessary to examine the case -in the light of section 40 of the Tenancy Act. The impugned decision -at Annexure-C to this petition, qua the first ground, cannot be sustained -in law.
[Para 4]
( 1 ) THE common decision rendered by the Gujarat Revenue tribunal at Ahmedabad (the Tribunal for convenience) on 7th April 1980 in revision Application Nos. TEN. B. A. 888 and 902 both of 1979 is under challenge in this petition under Art. 226 of the Constitution of India. Thereby the Tribunal upset the order passed by the Mamlatdar and Agricultural Lands Tribunal (No. 2) at Kalol (the First Authority for convenience) on 16th August 1977 in Tenancy case No. Nardipur-75 of 1975 as affirmed in appeal by the order passed by the deputy Collector (Land Reforms) at Mehsana (the Appellate Authority for convenience) on 30th June 1979 in Tenancy Appeal No. 220. By his aforesaid order, the First Authority accepted the application made by the present petitioner for restoration of possession of two parcels of land bearing survey Nos. 111 and 115 admeasuring 1 acre 5 gunthas and 2 acres 13 gunthas respectively situated at village Nardipur, taluka Kalol, district Mehsana (the disputed lands for convenience) on the ground that the disputed lands were not used for the purpose for which the possession thereof was taken by the landlord under Sec. 32t of the Bombay tenancy and Agricultural Lands Act, 1948 (the Tenancy Act for brief ).
( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner is the son of the Vithalbhai Harjivanbhai who was the original tenant of the disputed lands. I shall refer to the deceased father of the petitioner as the original tenant for the sake of convenience. The husband of original respondent No. 1 was the owner of the disputed lands. I shall refer to him as the landlord for convenience. It appears that the landlord was a certified landlord. He obtained possession of the disputed lands in accordance with Sec. 32t of the Tenancy Act. It is obvious that the landlord obtained possession of the disputed lands for his personal cultivation. It appears that during his lifetime he agreed to sell the disputed lands to respondent No. 2 herein. A copy of the agreement executed between the parties on 8th January 1967 is at annexure-D to this petition. It appears that the landlord thereafter breathed his last leaving behind him original respondent No. 1 as his heir and legal representative. I shall refer to original respondent No. 1 as the widow for the sake of convenience. As the heir and legal representative of the deceased landlord, she agreed to abide by the transaction between her deceased husband and respondent No. 2. She executed the necessary agreement on 20th April 1968. Its copy is at Annexure-E to this petition. It appears that the present petitioner thereupon moved the First Authority with an application under Sec. 37 of the Tenancy Act some time in 1972. It came to be registered as Tenancy Case No. 251 of 1972. It came to be rejected for default of appearance on the part of the present petitioner on 28th September 1972. That aggrieved the present petitioner and he, therefore, carried the matter in appeal before the Appellate Authority. The Appellate Authority dismissed the aforesaid appeal as time-barred by his order passed on 8th January 1974. The present petitioner thereupon invoked the revisional jurisdiction of the Tribunal by means of Revision application No. TEN. B. A. 141 of 1974. By its decision rendered on 30th April 1974 in the aforesaid revisional application, the Tribunal rejected it. The Tribunal, however, observed in its decision that the present petitioner could make a fresh application under Sec. 37 read with Sec. 39 of the Tenancy Act and the First authority should decide the same on merits if it was in time and according to law. It appears that, pursuant to the aforesaid direction issued by the Tribunal in its decision rendered on 30th April 1974 in Revision Application No. TEN. B. A. 141 of 1974, the present petitioner made a fresh application on 20th May 1974 before the First Authority under Sec. 37 of the Tenancy Act. It came to be registered as tena
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