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2017 Supreme(Guj) 291
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BELA M. TRIVEDI, J.
RASIKLAL REVASHANKER JANI & ANR - Petitioners
Versus
KALAJI KESHAJI (SINCE DECEASED) & Ors. - Respondents
SPECIAL CIVIL APPLICATION NO. 6909 of 2001
Decided On : 25-01-2017
For the Petitioners: DHIRENDRA MEHTA, SHAIVANG D. MEHTA
For the Respondents: VENUGOPAL PATEL, MITHIL MEHTA FOR SAURABH J. MEHTA
IMPORTANT POINT
Prospective sections cannot be applied upon prior transaction.
Headnote:Bombay Tenancy & Agricultural Lands Act, 1948 – Section 15, 31, 31A, 32G – Petition for quashing of order of Gujrat Revenue Tribunal – tenant surrendered his tenancy, the landowner was entitled to retain the land subject to the conditions as provided in Section 31 and 31A of the said Act, so far as they were applicable – Section 31 and 31A as they existed at the relevant time are seen, none of the conditions restricted the right of the landowner to transfer or sell the land in question – The provision called into question, which provided for restriction on transfer, were not into existence at the time of transfer – no restriction against the transfer or sale of the land in any of the provisions as they existed at the relevant time in the Tenancy Act, the findings recorded by the Deputy Collector in its order that there was violation of Section 32(P)(7) and 32(P)(8) were absolutely misconceived. – the impugned order passed by the Tribunal being based on misconception of facts and law deserves to be set aside
Result: Petition allowed.
1. The order dated 26.11.1998 (Annexure 'G') passed by the Gujarat Revenue Tribunal in Revision Application TEN B.A. 429/1990 preferred by the respondent No. 1 Kalaji Keshaji against the order dated 16.06.1990 passed by the Collector (Annexure 'F') in the Tenancy Appeal No. 151 of 1988, is under challenge before this Court.
2. The brief facts giving rise to the present petition are that the land bearing Survey No. 341 admeasuring 2 acres 35 gunthas situated at village Udan belonged to one Somji Bhaiji and Revaji Sankaji. The respondent No. 1 Kalaji Keshaji had claimed tenancy rights in respect of the said land, however in the proceedings initiated by the Mamlatdar and ALT under Section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act') being Tenancy Case No. 24/A-B Udan, the said Kalaji Keshaji made a statement on affidavit that he was not willing to purchase the said land. The Mamlatdar and ALT therefore vide the order dated 04.10.1960 held the purchase in respect of the said land along with other lands as ineffective. It appears that thereafter the Additional Mamlatdar initiated the proceedings under Section 32P of the said Tenancy Act in which the respondent No. 2 Manaji Ranaji, the legal representatives of Revaji Sankaji had stated that the respondent No. 1 Kalaji Keshaji had surrendered the land to him and that he was in occupation, possession and cultivation of the said land. The Additional Mamlatdar therefore vide the order dated 20.09.1962 (Annexure 'B') held that since the Kalaji Keshaji had voluntarily surrendered his possession to the landowner, the respondent No.2 Manaji Ranaji, the nephew of the original landowner deceased Revaji Sankaji was permitted to retain the land in question for personal cultivation subject to Section 15 of the said Act (Annexure 'B').
3. It further appears that after 20 years of the said orders passed by the Mamlatdar and Additional Mamlatdar, the respondent No. 1 Kalaji Keshaji made an application to the Mamlatdar under Section 32G of the said Act praying to allot the said land to him stating inter alia that he was willing to pay the purchase price. The Mamlatdar and ALT thereafter vide the order dated 08.02.1982 fixed the purchase price in respect of the said land, against which the petitioner had filed an appeal being Tenancy Appeal No. 80 of 1982 under Section 74 of the said Act before the Deputy Collector. The said appeal came to be partly allowed by the Deputy Collector vide the order dated 11.08.1982 whereby the Deputy Collector set aside the order dated 08.08.1982 passed by the Mamlatdar and ALT, however directed to initiate the proceedings under Section 84C of the said Act. It appears that thereafter the petitioner Rasiklal purchased the land from the landowner by way of registered sale deed executed on 10.08.1983. Thereafter, the Mamlatdar and ALT initiated the proceedings under Section 84C against the petitioner Rasiklal and held inter alia that the purchase of land by the petitioner Rasiklal was invalid and the original tenant Kalaji Keshaji was entitled to purchase the land as per the priority list. The Mamlatdar, also fixed the price of the land as Rs. 1,138/- and directed to dispose of the said land in favour of the said Kalaji Keshaji (Annexure 'E').
4. Being aggrieved by the said order, the petitioner Rasiklal, one Shardaben and respondent No.2 Manaji Ranaji filed the Tenancy Appeal No. 151 of 1988 before the Deputy Collector, which appeal came to be allowed vide the order dated 16.06.1990 (Annexure 'F'). The aggrieved respondent Kalaji Keshaji having preferred the Revision Application being No. TEN B.A. 429 of 1990 under Section 76 of the said Tenancy Act, the Gujarat Revenue Tribunal vide the order dated 26.11.1998 allowed the same and set aside the order dated 16.06.1990 passed by the Deputy Collector. Hence, the aggrieved petitioners have preferred the present petition.
5. The bone of contention raised by the l
