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2010 (1) GCD 650 (Guj) (DB)
Hon’ble Mr. Chief Justice K.S. Radhakrishnan &
Hon’ble Mr. Justice Akil Kureshi
Bhanubhai Ukediabhai
Versus
State of Gujarat & Ors.
Letters Patent Appeal No. 1439 of 20091—Decided on 11/08/20092
Bombay Tenancy and Agricultural Lands Act — Sections 15, 29, 70(b), 32-PPP and 32-G — Entries of names in record of rights — Ground that their predecessors-in-title was a protected tenant — Scope — Finding of — Court noted that Tribunal in particular noted that though name of predecessors — In title of petitioners was in records as a protected tenant but same was deleted by entry No. 166 dated 02.11.1955 in which it was mentioned that he has left possession before seven year — That entry was not challenged by petitioners’ predecessor in his life time when he was alive till 1991 or 1992 — His sons have now raised the issue in year 1996 after 40 years by an application — The case of petitioners is not, therefore, covered any of the provisions of law — That apart predecessor was not holding land on the Tillers day i.e. 01.04.1957, therefore, they can not claim benefit under Sections 32-G and 32-PPP of the Act — Nothing has been produced by petitioners to take different view from one accepted by Deputy Collector, Revenue Tribunal as well as Single Judge in this regard.
Held :
It is not in dispute that father of the petitioner who was alive, till 1991 or 1992, never raised claim of tenancy over the suit land. Long after father passed away and nearly 40 years after the entries in the revenue records were made, deleting his father as a protected tenant, the petitioner in the year 1996 for the first time approached Mamlatdar under Section 70(b) of the Tenancy Act claiming benefits of Section 32-PPP and 32-G of the Tenancy Act. The Deputy Collector as well as the Tribunal concurrently came to the conclusion that by Entry No. 166, the petitioner’s father’s name was deleted as a protected tenant way back on 2.11.55 in which also it was mentioned that he had voluntarily left the possession before seven years. Admittedly, this entry was never challenged by the father of the petitioner during his life time. No application under Section 32(1B) was also made, though the father of the petitioner was alive for a long time after the said Sub-section was added in the statute. [Para 8]
To these concurrent findings of fact, the Single Judge also put her seal. She also found that father of the petitioner was not cultivating the land on the appointed day or even on the Tiller’s day. In that view of the matter, Court see no infirmity in the view of the Single Judge that the petitioner cannot claim the benefit of Section 32-PPP, or 32-G or 32(1B) of the Tenancy Act. [Para 9]
There is nothing on record to suggest that father of the petitioner was in possession of the land on the appointed day. Nothing has been produced before the Courts below or before this Court to come to a finding different from one accepted by the Deputy Collector, Gujarat Revenue Tribunal as well as Single Judge in this regard. [Para 11]
Law Laid Down :
When father of petitioners was not cultivating the land on appointed day or even on Tiller’s day, they can not claim any relief under the Act.
Akil Kureshi, J.—The appeal is directed against the decision of the Learned Single Judge dated 6.8.2008 passed in Special Civil Application No. 9024/2000.
2. Issue pertains to tenancy rights over land bearing Survey No. 136 admeasuring 4 acres and 20 gunthas of village Palia, Tal. Jetpur-Pavi, District Vadodara. The petitioner Bhanubhai Ukediabhai along with his two brothers filed an application before the Mamlatdar and ALT, Baroda on 6.12.1996 under Section 70(b), 32PPP and 32G of the Bombay Tenancy and Agricultural Lands Act (“the Tenancy Act” for short). Their case was that their predecessor-in-title Ukediyabhai Daliyabhai was a protected tenant and accordingly entries in record of rights were made to this effect.
3. Mamlatdar and ALT by order dated 26.12.1997 held that the applicants were entitled to purchase of land upon payment of price of Rs.1643.20. Respondent No. 3-land owner appealed against the order passed by the Mamlatdar and ALT before the Deputy Collector, Chhotaudepur, who by his order dated 2.7.1998 allowed the appeal and set aside the order passed by the Mamlatdar and ALT. Petitioner preferred Revision Application before the Gujarat Revenue Tribunal which came to be dismissed by an order dated 10.6.1999, upon which he preferred above-mentioned petition which also came to be dismissed by the Learned Single Judge by impugned judgement dated 6.8.2008.
4. Though the Mamlatdar found that the father of the petitioner was cultivating the lands as a tenant and that the petitioner and his other brothers were entitled to benefit of provisions under Section 32(1B) of the Tenancy Act, the Deputy Collector as well as Gujarat Revenue Tribunal did not find sufficient evidence to entertain the application. The Tribunal in particular, noted that though the name of Ukediyabhai was found in the records as a protected tenant, same was deleted by entry No. 166 dated 2.11.55 in which it is mentioned that he has left possession before seven years. This entry was never challenged by Ukediyabhai during his life time. His sons have tried to raise the issue by making application nearly 40 years after entry was made. The Tribunal therefore, held that the case is covered neither under Section 32-G nor under Section 32(1B) of the Tenancy Act.
5. Learned Single Judge in a detailed decision dated 6.8.2008 upheld the orders passed by the Deputy Collector as well as Gujarat Revenue Tribunal. She found that Section 32PPP of the Tenancy Act would not apply since the land was not at the disposal of the Collector on account of purchase of the land by the tenant having become ineffective under Section 32G of the Tenancy Act. She also found that father of the petitioner was not holding the land on the Tiller’s day i.e. 1.4.57. Therefore, Section 32G of the Tenancy Act would not apply. She further held that Section 32(1B) of the Tenancy Act could not be invoked since there is nothing on record to suggest that predecessor-in-title of the petitioner was in possession of the land on the appointed day.
6. We have heard learned advocate Shri Amit Patel for the petitioner and learned AGP Shri Devang Vyas for the State appearing on advance copy.
7. Learned Advocate Shri Patel vehemently submitted that father of petitioner was a protected tenant. He was dispossessed without following due process of law. His so-called surrender of the tenancy was not in consonance with Sections 15 and 29 of the Tenancy Act. Such surrender would be nonest. The petitioner is required to be declared as tenant and allowed to purchase the land in question. Learned AGP on the other hand supported the decisions under challenge.
8. It is not in dispute that father of the petitioner who was alive, till 1991 or 1992, never raised claim of tenancy over the suit land. Long after father passed away and nearly 40 years after the entries in the revenue records were made, deleting his father as a protected tenant, the petitioner in the year 1996 for the first time approached Mamlatdar u
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