2006 Supreme(Guj) 805

Gujarat High Court
Judgename :R.S.GARG
HARIVADAN BHAGWANDAS - Appellant
Versus
CHANDABEN MELANHAI VASAVA AND DAUGHTER OF MATHURBHAI - Respondent
SPECIAL CIVIL APPLICATION 934 Of 1986
Decided On : 12/15/2006

Headnote:Head Note :

       Bombay Tenancy and Agricultural Lands Act, 1948 - (Guj. Act 67 of 1948) - Sections 4, 32(G) and 88 - Deemed tenant - Findings of Mamlatdar-cum-ALT - Respondent was in lawful possession as cultivator - He will be treated as deemed tenant within Section 4 - Further, contention that suit land was not agricultural land stood rejected - Findings of Mamlatdar-cum-ALT and Tribunal are upheld.

       Held :

       From a fair and legal understanding of the section, it will be clear that a person who is in lawful cultivating possession would be deemed to be a tenant if the land is not cultivated by the owner and such person in cultivating possession is not, a member of the owners family or, a servant on wages payable or a hired labourer or any member of the owners family or a mortgagee in possession. The moment it appears to the Court that a person is lawfully cultivating the property and owner fails in proving that the entry of name of such person in revenue records was illegal, then, the presumption would be strengthened and the burden would be extra heavy upon the owner/landlord to prove that the entry was illegal or agricultural activities carried on by the such person were unlawful. In the present case, entries made in the revenue records clearly prove that the father of the Respondent No. 1 was in cultivating possession and he was recorded as a tenant either in 1956 and thereafter. The owner/landlord never moved any application to the revenue authority for correction of the records. He accepted the entries as those were. The revenue entries have a presumption of bring truthful unless the correctness of the same is rebutted. In the present matter, the case of the present petitioners was that they were cultivating the land through some one else, but beyond that he did not say that how the father of the respondents or the respondents came in possession of the property. Under Section 4 of the Act, a person would not be a tenant where he is a trespasser or is a servant or is a mortgagee. It is not the case of the respondents that the father of the respondents was or the respondents were trespasser. Even otherwise, right from 1956, the petitioners never took any step for dispossession of the father of the respondents or the respondents. He allowed them to cultivate the property non-action on the part of the petitioners would speak against the petitioners. [Para 8]

       If the entry of a person on the land is valid and he is cultivating, then the Court would be justified in presuming that he is lawfully cultivating the land. The presumption can only be displaced if the evidence is produced on the record to prove that the entries were wrong or other important material was not considered before making the entry. Unfortunately, in the present case the petitioner failed on both the counts. [Para 9]

       So far as application of Section 88 is concerned, it is to be seen that Section 88 provides that save as otherwise provided in Sub-section (2) nothing in the foregoing provisions of the Act shall apply to lands belonging to or held on lease from the Government, to lands held or leased by the local authority, to any area which the State Government may, from time to time by notification in the Official Gazette specify as being reserved for non-agricultural or industrial development. In the present matter, the State of Bombay had issued notification No. TNC/5156/81828-M dated 21.05.1958 declaring that the areas within the limits of Municipal Borough of Baroda, were being reserved for non-agricultural and industrial development. On issuance of such a notification, the provisions contained in 1948 Act were not to apply to the land but a person in possession could not be dispossessed except in accordance with law. Yet another notification was issued by the Government of Gujarat on 17.10.1964 where-under in supersession of the above referred notification, it was observed that the areas within the limits of Municipal Borough of Surat and Baroda as they existed on the 01.02.1957 and on the 21.05.1958 respectively were being reserved for non-agricultural and industrial development. Notification dated 17.10.1964 was not to make any change so far as the land falling within the limits of Municipal Borough of Baroda was concerned. However, vide notification dtd. 23.08.1976, earlier notification dtd. 17.10.1964 was rescinded by the Government. The effect of rescission of notification would attract the consequence of proviso appended to Clause (d) of Sub-section 1 of Section 88. The said proviso says that with effect from the date on which estate or land is released from such management the foregoing (earlier) provisions of 1948 Act shall apply thereto and in the case of tenancy, other than a permanent tenancy subsisting on such date in respect of any land in such estate or such land, landlord shall be entitled to terminate such tenancy under Section 31 within one year from such date and the tenant shall be deemed to have purchased the land under Section 32 on the expiry of the period, during which such landlord is entitled to terminate such tenancy under Section 31. It would be clear from the provisions of law that on lapse/withdrawal of the exemption notification, property would again become agricultural property and would be subject to the provisions of 1948 Act. The moment the said two notifications were withdrawn by the notification dated 23.08.1976, the land became agricultural land and the provisions of 1948 Act became applicable. If the land became agricultural land and the provisions of 1948 Act became applicable, then there would be no escape from consequences as provided under Sections 4, 31 and 32 and other provisions of the Act. [Para 10]

       The Mamlatdar-cum-ALT had recorded positive findings and the Gujarat, Revenue Tribunal, in the opinion of this Court, has appreciated the law in its true spirit. [Para 11]

       Decided in Favour of :

       Respondent

       Petition Dismissed