2007 Supreme(Guj) 39

Gujarat High Court
Judgename :JAYANT PATEL
C.THROUGH POWER OF ATTORNEY - Appellant
Versus
MAMLATDAR AND AGRICULTURAL LANDSTRIBUNAL (GANOT) - Respondent
SPECIAL CIVIL APPLICATION 11799 Of 2005
Decided On : 01/23/2007

The Mamlatdar is the first authority to decide the rights of the tenant in any land of any category and of the transferability of the tenancy right in the land or not and the Collector is clothed with the revisional jurisdiction against the same and the Tribunal or the State Government, as the case may be, may exercise the further power thereafter, as per the provisions of the Act.

Headnote:

BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 43(1B) - TRANSFER OF PROPERTY ACT, 1882 - SECTION 108(J) - TRANSFERABLE RIGHT - PERMANENT TENANT - CIRCULAR DATED 7.10.2005 - ULTRA VIRES - MAMLATDAR'S JURISDICTION UNDER SECTION 70(O) - SCOPE AND AMBIT.

Fact of the Case:

The petitioners, tenants of the concerned land, purchased various parcels of land as per the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act). The sale certificates issued in their favor did not contain any right in their favor as unrestricted tenure or with a transferable right. The State Government, after an amendment in Section 43 of the Act, issued circulars clarifying that if the tenant had purchased the property and the certificates were already issued prior to the amendment, but it is proved that such tenant had a transferable right, they would be entitled to the benefits of Sub-section (1b) and the certificates are not required to be corrected. The petitioners made applications to the concerned Mamlatdar and ALT under Section 70(o) of the Act for declaration of their status as the permanent tenant and as per the petitioner, it was also prayed that it may be declared that the restriction under Section 43 of the Act are not applicable to the land held by the petitioner as the permanent tenant and the revenue record be corrected accordingly. The Mamlatdar dismissed the application. The petitioners challenged the order of the Mamlatdar by preferring the present petitions.

Finding of the Court:

1. The Mamlatdar is the first authority to decide the rights of the tenant in any land of any category and of the transferability of the tenancy right in the land or not and the Collector is clothed with the revisional jurisdiction against the same and the Tribunal or the State Government, as the case may be, may exercise the further power thereafter, as per the provisions of the Act. 2. In cases where the power is exercised by the Mamlatdar under Section 70(o) of the Act, if the Collector or the State Government, as the case may be, finds that the power is not properly exercised or the legality or propriety of any order passed by the Mamlatdar deserves to be scrutinized further, such can be undertaken under revisional powers, as provided under Section 76a of the Act, either by the Collector suo motu or upon the reference of the State Government, but subject to the outer limit of 1 year as expressly provided by the legislature under Section 76a of the Act. 3. The circular of the State Government dated 07.10.2005 is in conformity with the express basic scheme and mechanism provided under the Act and the circular attempts to nullify the power conferred by the legislature upon the Mamlatdar and ALT for the first instance and the circular is intended to confer the power upon the Collector with the approval of the State Government against the express statutory scheme and mechanism of the Act and hence, the said circular of the State Government is ultra vires to the Act and hence, unconstitutional and void.

Issues: 1. Whether the circular dated 7.10.2005 issued by the State Government is ultra vires to the Act? 2. Whether the Mamlatdar has jurisdiction to decide the question of transferability of the tenancy right of a tenant under Section 70(o) of the Act? 3. What is the scope and ambit of the words 'a transferable right' under Section 43(1b) of the Act?

Ratio Decidendi: 1. The circular dated 7.10.2005 issued by the State Government is ultra vires to the Act as it attempts to nullify the power conferred by the legislature upon the Mamlatdar and ALT for the first instance and confers the power upon the Collector with the approval of the State Government against the express statutory scheme and mechanism of the Act. 2. The Mamlatdar has jurisdiction to decide the question of transferability of the tenancy right of a tenant under Section 70(o) of the Act, but the exercise of such power would be in light of the observations made by the Court in the judgment. 3. The words 'a transferable right' under Section 43(1b) of the Act mean that the tenant has the right to transfer his tenancy to his legal heir or to a third party, unless there is a contrary clause in the tenancy agreement.

Final Decision: The impugned orders passed by the Mamlatdar are quashed and set aside with the direction to the Mamlatdar to decide all concerned cases afresh after giving opportunity of hearing to all affected parties in light of the observations made and conclusions recorded in the present Judgment. The circular dated 7.10.2005, so far as it relates to the withdrawal of the power of the Mamlatdar under Section 70(o) of the Act and conferring the power upon the Collector to decide the question of transferability of the rights of the tenant or permanent tenant, as the case may be, and to seek prior approval of the State Government etc., is ultra vires to the Act.