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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, Vaibhavi D. Nanavati, JJ.
Gujarat Harijan Sevak Sangh – Appellant
Versus
Deceased Garbadji Khodaji Thru L/H And L/R – Respondents
R/Letters Patent Appeal No. 1213 of 2019 In R/Special Civil Application No. 17492 of 2006 with Civil Application (For Stay) No. 2 of 2018
Decided On : 30-06-2021
Tenancy Act – Section 88b 70(b) and 32G - Alliance Trust by registered Sale Deed - By very nature of things due to huge social economical and societal inequalities between landholder and tenant, Tenancy Act contains several measures to ensure that genuine tenancy is not terminated or extinguished on mere mechanical confessions or admissions by a tenant - Even a surrender of a tenancy had to be through certain procedure to ensure that same was voluntarily d willingly done. - When voluntarily came before and declared that he was not tenant of land though his name appeared in revenue records, duty of Mamlatdar was to make further inquiries - T
Finding of the Court:
Tenancy Act did not expect him to accept statement mechanically as if it was adversarial litigation - As noted, I am informed that this land bearing Survey No. 388 (A should be there in between)/2/2 was sub-divided into 388/A/2/1 of 3 Acres and 6 Gunthas - Sale deed, there is a clear mention of seller informing purchaser that out of total four parcels of land being sold, Garbadji is cultivating Survey No. - Proceedings under Section 32G were dropped merely on statement of respondent without full inquiry - Certificate produced by appellant Trust under Section 88b of Tenancy Act granting exemption was given credence by Mamlatdar - Court has to consider judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of view that decision has been arrived at by learned Single Judge without any material error of fact or law, then, judgment, in question, should be allowed to prevail –
Result: Appeal dismissed
JUDGMENT :
Vaibhavi D. Nanavati, J.
1. This appeal under Clause 15 of the Letters Patent is at the instance of the original writ applicant and is directed against the order passed by a learned Single Judge of this Court dated 7.9.2018 in the Special Civil Application No.17492 of 2006 by which the learned Single Judge disposed of the writ application with a direction to the Mamlatdar to institute proceedings under Section 32G of the Tenancy Act to fix the purchase price of the land.
2. The facts giving rise to this appeal may be summarised as under :-
2.1 The appellant (original respondent No.4) is a registered Sangh who purchased the land bearing Survey Nos.386/2, 388/A/2/2, 386/6 and 388/9 from one Cristian Missionary and Alliance Trust by registered Sale Deed on 16.6.1965.
2.2 Respondents (original writ applicants) are the legal heirs of Garbadji Khodaji who was cultivating some of the lands i.e. bearing Survey Nos.386/2 and 388/2/1 which were carved out from the original Survey No.388/A/2/2/ as tenant. With respect to the land bearing Survey No.388/2/1 proceedings under Section 32G of the Bombay Tenancy and Agricultural Land Act in Tenancy Act were dropped because the Trust had produced certificate of exemption under ection 88b of the Tenancy ActS. Appellant (original respondent No.4) approached the Mamlatdar and ALT on 4.4.1984 under Section 70(b) and 32G of the Tenancy Act contending that in land bearing Survey No.388/A/2/1 admeasuring 1 Acre and 6 Gunthas, the name of Garbadji was wrongly shown in the village record and the same was required to be deleted.
2.3 On issuance of notice by the Mamlatdar Garbadji and his daughter-in-law jiviben made a statement that they never cultivated the disputed land and the said land was always cultivated by the owner. The Mamlatdar relied on the statement of Garbadji/his family members to hold that Garbadji was not a tenant of the said land. Accordingly the name of Garbadji was ordered to be deleted from the revenue record from 30.4.1984.
2.4 The order dated 30.4.1984 passed by Mamlatdar and ALT was challenged by Garbadji and his family by filing appeal before the Dy. Collector.
2.5 The Dy. Collector after one round of remand, by order dated 30.9.1996 dismissed the appeal filed by Garbadji on the ground that Garbadji had already deposed before the Mamlatdar & ALT that he was not cultivator of the disputed land. In the meantime, Garbadji died on 11.2.1989 and his legal heirs filed revision application before the GRT. On 27.4.2006 the revision application came to be rejected by the GRT confirming the order passed by the Mamlatdar & ALT as well as Dy. Collector.
3. Being aggrieved and dissatisfied by the orders dated 30.4.1984, 31.3.1996 passed by the Mamlatdar & ALT and Dy. Collector respectively and confirmed by the Gujarat Revenue Tribunal vide order dated 27.4.2006, the legal heirs of Garbadji approached this Court by filing Special Civil Application No.17492 of 2006 which came to be disposed of by order dated 7.9.2018.
4. Being aggrieved and dissatisfied by the order 7.9.2018 setting aside the orders dated 30.4.1984, 31.3.1996 passed by the Mamlatdar & ALT and Dy. Collector respectively and confirmed by the Gujarat Revenue Tribunal vide order dated 27.4.2006 the learned Single Judge disposed of the Special Civil Application No.17492 of 2006 the appellant (original respondent No.4 ) filed the present appeal.
5. We have heard Mr. V. H. Nangesh, the learned counsel appearing for the appellant (original respondent No.4 ) and Mr. Meet Thakker, learned AGP appearing for the respondents – State through video conferencing.
6. We should first look into the findings recorded by the learned Single Judge while disposing of the writ petition. The learned Single Judge while disposing of the writ petition made following observations in paragraphs 13 to 18 :-
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