1996 Supreme(Guj) 347

Gujarat High Court
Judgename :J.N.Bhatt
DHANLAXMIBEN - Appellant
Versus
HASUMIYA AKBARMIYA MALEK - Respondent
S.C.A. 11430 of 1994
Decided On : 07/25/1996

Headnote:(a) Constitution of India, 1950 - Arts. 226 & 227 - Bombay Tenancy & Agricultural Laws Act, 1948 - Secs. 32G(4), 32H & 63A(3) - Special secretary allowing revision against the order of Deputy Collector fixing purchase price of Land & trees - Review petition against rejected giving rise to the petition seeking direction to Deputy Secretary revenue Department to decide review application on merit - Petition on ground that there was mistake in calculation while passing order by Special Secretary is not acceptable because under Sec. 32G Tribunal is empowered to determine reasonable price under Sec. 63A(3) following procedure laid down under Sec. 32H - In view of said provision of Law finding of the Deputy Secretary can not be said to be perverse, illegal or unjust requiring interference of court - Reliance placed on order dated 9.3.1992 passed by Spl. Secretary is also misplaced as it is not an order but an administrative letter which could not be invoked by petitioner for any assistance.The Tribunal under the Bombay Tenancy Act is empowered to determine price of land to be paid by the tenant under Sec. 32G. In a given case, if the tenant is ready to purchase the land, the Tribunal has to fix purchase price of such land under Sec. 32G (4). Section 32H provides the mechanism for reckoning and determining the purchase price by the Tribunal to be paid by the tenant. The Tribunal is required to consider various aspects and circumstances while fixing the price. The Tribunal has also to consider the provisions of Sec. 63A which provides for reasonable price of land to be fixed for the purpose of its sale and purchase.[Para 2]Reliance is placed on the order dated 9.3.1992, passed by the Special Secretary, Revenue Department. In fact, it is not an order but it is a yadi (note) whereby the deputy Collector was directed to offer remarks pursuant to the review application and then to fix purchase price under sec. 32G (4). In fact, it appears, it was an administrative letter and not a judicial order. As such, the Special Secretary, after receipt of review application and before its decision, wanted to ascertain certain facts. Therefore, he had written a note to the Deputy Collector. However, such note cannot be said to be an order or decision. Therefore, the contention that rejection of review application holding that the authority had no power to review is contrary to the order dated 9.3.1992, is not acceptable and not maintainable. What was written on 9.3.1992 was not for the purpose of ascertaining certain information from the deputy Collector so as to decide the review application on merits. However, on 8.11.1993, review application came to be rejected by the Deputy Secretary, Revenue Department holding that there was no power of review. This finding of the Deputy Secretary cannot be said to be perverse, illegal or unjust requiring interference of this Court.[Para 3](b) Constitution of India, 1950 - Arts. 226 & 227 - Scope of - Finding of facts can not be assailed under - However since there is approval of error that in the earlier order there was mention of ten tree & in subsequent order price is fixed for five trees only - Held, in the facts it would be necessary & appropriate to direct first respondent to pay a lump sum of Rs. 1500/- by way of price of remaining five trees in the larger interst of justice.It is true that in the earlier order, there was mention of ten tree and thereafter, in the subsequent order, price is fixed for five trees only. Under the provisions of law, amount by way of price of trees grown by the landlord while fixing the price of such land to be paid to the tenant is required to be ascertained. Of course, finding of fact cannot be assailed in a petition under Arts. 226 and 227 of the Constitution of India where jurisdictional sweep is very much circumscribed. Since there is apparent error in calculation and considering the price of trees for which price is fixed to be paid to the landlord, it would be necessary and appropriate to direct the first respondent to pay a lumpsum amount of Rs. 1,500/- by way of price of remaining five trees, in the larger interest of justice, to the petitioner who is also a widow having minor children, within a period of two months from today.[Para 4]