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Jankhan Kalukhan and ors. Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 85 of 1971
Judge
Reported inAIR1972Guj103; (1972)GLR577
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-P(4) and 32-P(9)
AppellantJankhan Kalukhan and ors.
RespondentThe State of Gujarat and ors.
Appellant Advocate M.H. Chhatrapati, Adv.
Respondent Advocate G.N. Desai, Govt. Pleader and; S.H. Desai and Co., Addl. Govt. Pleader
Cases ReferredEbrahim Aboobakar v. Custodian General of Evacuee Property
Excerpt:
.....and 32 p (9) of bombay tenancy and agricultural lands act, 1948 - petitioner challenged right of state government to file appeal under section 32 p (9) - compensation to be paid by government to taluqdars whose land has been taken over by government under section 32 p - state government is party interested in determination of compensation - state government aggrieved by order passed by collector in determining compensation in respect of lands vesting in government - held, state government has right to file appeal. - - 1. in this petition under arts 226 and 227 of the constitution of india, the petitioners who are the ex-taluqdars of the villages rani and ranod in district mehsana have challenged the right of the state government to file an appeal under section 32-p(9) of the..........ex-taluqdars of the villages rani and ranod in district mehsana have challenged the right of the state government to file an appeal under section 32-p(9) of the bombay tenancy and agricultural lands act, 1948, as well the order made by the opponent no. 2 herein, who is a special secretary in revenue department of the government of gujarat, dated 2nd november, 1970 which is ex. l to the petition passed in appeal no. 449 of 1966 and appeal no. 2 of 1968 preferred by the tenants of the petitioners-taluqdars, remanding the matters involved in the appeals to the mamlatdar to determine against whether the appellants in the said appeals were permanent tenants of the petitioners-taluqdars or not. shortly stated, the facts leading to this petition are as under:-on enactment of the bombay.....
Judgment:

B.K. Mehta, J.

1. In this petition under Arts 226 and 227 of the Constitution of India, the petitioners who are the ex-Taluqdars of the villages Rani and Ranod in District Mehsana have challenged the right of the State Government to file an appeal under Section 32-P(9) of the Bombay Tenancy and Agricultural Lands Act, 1948, as well the order made by the opponent No. 2 herein, who is a Special Secretary in Revenue Department of the Government of Gujarat, dated 2nd November, 1970 which is Ex. L to the petition passed in Appeal No. 449 of 1966 and Appeal No. 2 of 1968 preferred by the tenants of the petitioners-Taluqdars, remanding the matters involved in the Appeals to the Mamlatdar to determine against whether the appellants in the said appeals were permanent tenants of the petitioners-Taluqdars or not. Shortly stated, the facts leading to this petition are as under:-

On enactment of the Bombay Tauqdari Tenure Abolition Act of 1949, which came in force from 15th August, 1950, the tenure of the petitioners-Taluqdars in the villages Rani and Ranod were abolished and on abolition of the said tenure, the respondent No. 3, who is the Mamlatdar, Patan by his order of 1st June, 1962, decided the status of the tenants of the petitioners-Taluqdars under Section 5-A of the said Act and he held that except two cultivators of village Rani and five cultivators of village Ranod, the other tenants were merely tenants at will of the petitioners-Taluqdars and the said seven tenants were the permanent tenants. It appears that after this order some of the cultivators viz. V. Sultanbhai and 27 others, who were held to be merely the tenants at will filed an appeal and in the said appeal, the order of the respondent No. 1 of 1st June, 1962 was set aside by the Order of the State Government of 26th July. It appears that the second batch of the cultivators viz. Laxmanbhai and 34 others, who were held to be tenants at will by the aforesaid order of Mamlatdar, Patan, of 1st June, 1962, preferred a similar appeal to the State Government and in that appeal also the aforesaid order of the Mamlatdar, Patan, was set aside on 9th August, 1966. It appears further that the petitioners- Taluqudars, being aggrieved with the said orders of the State Government in two appeals setting aside the aforesaid order the Mamlatdar of 1st June, 1962 moved the High Court of Gujarat under Arts, 226 and 227 of the Constitution by their Special Civil Applications Nos. 995 of 1963 and 1370 of 1966. The said Special Civil Applications were rejected by the High Court of Gujarat. It appears further that a 3rd batch of 20 cultivators viz. Koil Juha Dajibhai and others--the respondents Nos.4 to 23 herein and a 4th batch of 5 cultivators preferred appeals to the government of Gujarat against the aforesaid order of Mamlatdar of 1st June, 1962, being Appeals Nos.449/66 and 2/68, respectively. Both the appeals were heard by the respondent No.2 herein and he by his order of 2nd November 1970 allowed the appeals and set aside the aforesaid order of the Mamlatdar, Patan, of 1st June, 1962 and remanded the case to him fro a fresh inquiry and decision on the grounds suggested by the respondent No.2 in his order. It appears that consequent to the aforesaid order of Mamlatdar. Patan of 1st June, 1962, the Agricultural Lands Tribunal, Patan, started proceedings under Section 32-G of the Tenancy Act and in those proceedings the Agricultural Lands Tribunal declared the purchase of lands to be ineffective and thereafter conducted inquiries under Section 32-P of the Tenancy Act. In the proceedings under Section 32-P, the Agricultural Lands Tribunal decided that the tenancy in question in respect of the tenants of the petitioners-Taluqdars including Respondents Nos.4 to 23 stood terminated and that the lands in question should be disposed of under S. 32-P(c) of Tenancy Act. It appears further that in those proceedings under S. 32-P(c) of the Tenancy Act, no person applied for the lands with the result that the lands in question were ordered to be vested in the State government under S. 32-P(4) of the Tenancy Act. It appears further that after the vesting of the lands in question in the State Government under Section 32-P(4), the Agricultural Lands Tribunal determined the prices of the said lands in several cases and passed orders determining the amount of compensation to be paid by the State Government to the petitioners-Taluqdars. It should be recalled that the opponents Nos.4 to 23 herein had preferred an appeal in November 1966 before the State Government against the order of the Mamlatdar. Patan dated 1st June, 1962 by their appeal No.449 of 1966 and in the said appeal the Respondent No.2 has set aside the order of the Mamlatdar, Patan, and remanded of matter to the Mamlatdar to dispose of afresh on the lines indicated in this said order of November 2, 1970. The Agricultural Lands Tribunal has determined the compensation under S. 32-P(4) of the Tenancy Act on 28th February, 1969. After the determination of the compensation under Section 32-P(4) , it appears that the State Govt, through Mamlatdar. Patan, has filed an appeal against the aforesaid order determining the compensation to be paid to the petitioner-Taluqdars consequent to the vesting of the lands under Section 32-P(4) before the State Government according to Section 32-P(9) of the Tenancy Act on 28th June. (1970). The petitioners-Taluqdars, therefore, being aggrieved with the order of the State Government dated 2nd November, 1970 in Appeal No.449 of 1966 field by the respondent Nos.4 to 23 and also by the appeal filed by the State Government against the order of the Agriculture Lands tribunal determining the compensation, approached this Court under Arts, 226 and 227 of the Constitution of India for appropriate writs, orders and directions to quash and set aside the orders of the State Government dated 2nd November, 1970, in Appeal No.449 of 1966 and also for quashing and setting aside proceedings of the appeals filed by the State Government against the order determining the compensation.

2. This petition was admitted for purposes of the reliefs claimed by the petitioners in sub-para (b) of Para 48, so far as the writs, orders and directions were sought for quashing and setting aside the proceedings of appeal preferred by the State Government against the order of the Tribunal determining the compensation under Section 32-P(4) of the Tenancy Act. But as regards the relief claimed in sub-para (a) of para 48, of the petition, for appropriate writs, orders and directions to quash and set aside the orders of the State Government in Appeal No.449 of 1966 setting aside the order of the Mamlatdar, Patan, of 1st June, 1962 and remanding the matter to him for deciding afresh, was not admitted.

3. At the time of hearing of this petition, the only point which was urged by Mr. M.H. Chhatrapati, the learned advocate, appearing on behalf of the petitioners-Taluqdars, that the appeal preferred by the State Government against the order of the Tribunal, determining the compensation under Section 32-P(4) of the Tenancy Act consequent to the vesting of the lands in question in the State Government as the compulsory sales had become ineffective, was not competent, inasmuch as the order of the Tribunal determining compensation under Section 32-P(4) is merely an offer by the State Government as to the compensation which is to be paid for the land which is vested in the State Government under Section 32-P(4) proceedings after the sales become ineffective. In submission of Mr. Chhatrapati, the only person aggrieved by the order of the Tribunal determining the compensation could be the person to whom the compensation is to be paid and, therefore, under Section 32-P(9) the appeal can be preferred only by such a person who is aggrieved and not by the State Government whose officer has determined the compensation as a result of the land vesting in the State Government. Mr. Chhatrapati has relied on Section 32-P(9) and pointed out that the State Government could not be said to be 'a person aggrieved' by the order of the Collector, determining the compensation as the section invests this right of appeal in 'a person aggrieved' with the order of the Collector, and in submission of Mr. Chhatrapati, the State Government cannot be termed as 'a person' and therefore, the appeals preferred by the State Government were not competent and the proceedings in pursuance thereof, therefore, deserve to be quashed.

4. On behalf of the State Government, Mr. G.N. Desai, the learned Government Pleader, has pointed out that the State Government is a vitally interested party in these proceedings, inasmuch as the compensation is to be paid out of the treasury of the State to the petitioners-Taluqdars whose lands vest in the State Government pursuant to the compulsory sales become ineffective and, therefore, to urge that the State Government is not a party aggrieved is beyond the spirit of Section 32-P(4) under which the Collector determines compensation. Mr. Deasai, the learned Government Pleader, has also pointed out that the contention on behalf of the petitioners-Taluqdars that the Government is not a person is clearly not tenable in view of the decision of the Supreme Court in the matter of the State of Punjab v. Okara Grain Buyers Syndicate Ltd., Okara reported in AIR 1964 SC 669 and also in view of the decision of this High Court as reported in the matter of Laljimal Premsukhdas v. B.K.Kombrabail, (1965) 6 Guj LR 282.

5. The point, therefore, which we have to consider is, whether the State Government can be said to be 'a person aggrieved' by the order of the collector determining the compensation under Section 32-P(4) of the Bombay Tenancy and Agricultural Lands Act, 1948. The said section reads as under:--

'32-P(4): Where any land or portion thereof cannot be surrendered in favour of the landlord and where such land or portion is offered for sale under sub-section (2) but no person comes forward to purchase such lands or portion, as the case may be, shall vest in the State Government and the Collector shall determine the price of such land or portion in accordance with the provisions of Section S63-A and the amount of the price so determined shall subject to the provisions of Section 32-Q, be paid to the owner thereof.'

The provision for appeal against an order made under Section 32-P is made in Section 32-P(9) which reads as under:--

'32-P (9): Any person aggrieved by any order made by the Collector under the foregoing provisions of this section may appeal to the State Government against such order.'

Now, therefore, the first question is, whether the State Government can be said to be a person aggrieved by the order of the collector determining the compensation under Section 32-P(4) of the said Act. In this connection it is profitable to refer to the decision of Supreme Court in Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi, reported in AIR 1952 SC 319. In this case the Court was concerned with the right of the Tribunal constituted to hear appeals under Section 24 of the Administration of Evacuee Property Act (1950). The relevant Section reads as under:--

'Any person aggrieved by an order made under Section 7, S, 16, S, 19 ,or Section 38, may prefer an appeal in such manner and within such time as may be prescribed:

(a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian;

(b) to the Custodian-General, where the original order has been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian.'

The Court while dealing with what is the power of the authority hearing appeals, under the aforesaid Act observed as under:--

'Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of thing it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has 'locus standi' to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate Court constituted. Such a tribunal falls within Class 2 of classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of 'certiorari' could not issue to the respondent quashing the order of the 13th May, 1950 was right ...................'

The Court further observed in respect of the contention, whether one Tekch and Dolwani was not a 'person aggrieved' within the meaning of those words in Section 24 of the Ordinance, as under in paragraph 15:--

'....................It is provided in Rule 5 (5) that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property; the Custodian shall then, either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause may produce and 'also evidence which the party claiming to be interested as mentioned above may adduce.' In the proceedings before the Additional Custodian, Tekchand Dolwani filed a reply to the written statement of Aboobokar and adduced evidence in support of the stand taken by him that the property of Aboobakar was evacuee property. Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobakar was evacuee property and in view of the order of the Ministry of Rehabilitation he was, as a first informant, entitled to first consideration in the allotment of this property, the Additional Custodian was bound to hear him on the truth and validity of the information given by him. When a person is given a right to raise a contest in a certain matter and his contention is negatived, then to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper ............'

Relying on this paragraph it was urged by Mr. Chhatrapati that considering the rules framed under the Tenancy Act, it does not appear that the State Government has any right to raise a contest or as a matter of right to the proceedings wherein the compensation is determining for the lands which vest in the Government and, therefore, it cannot be said that the State Government is a period who is aggrieved with the order of the Collector determining compensation. We are of the opinion that this submission of Mr. Chhatrapati is not impressive at all. The compensation which is to be determined is in reference to the lands which vest in the Government consequent to the compulsory sales becoming ineffective and no purchaser being available in the proceedings under Section 32-P(c). The compensation which is to be paid is also to be paid by the Government to the Taluqdars whose land has been taken over by the Government under S. 32-P proceedings. It is, therefore, not conceivable how the Government in which the right, title and interest of an owner of the land is to vest and who is supposed to pay compensation, cannot be said to be a person interested in the determination of the question of compensation. To say the least, the State Government in the instant case, is a party vitally interested in the question of the determination of the compensation. Surely, therefore, the State Government will be a party which would, in a given case, aggrieved with the order that may be passed by the Collector determining the compensation in respect of the lands vesting in the Government. The second limb of the contention of Mr. Chhatrapati that the Government cannot be said to be a 'person' in view of the definitions given in the Bombay General Clauses Act, 1904, as the term 'person' is not defined in the Tenancy Act. Section 3(35) of the Bombay General Clauses Act, 1904, defines who is a 'person.' Section 3(35) of the said Act reads as under:--

'3 (35) 'person' shall include any company or association or body of individuals, whether incorporated or not.'

Mr. Chhatrapati also pointed out to us that Section 3(35-A) defines 'pre-Reorganisation State of Bombay' and Section 3(46-A) defines 'State of Bombay' and therefore, in view of the different definitions given for these three different terms, it was urged that, the term 'person' cannot include the Government. Now this contention of Mr. Chhatrapati also should be rejected, in view of the concluded position of law on this question by the decision of supreme Court in AIR 1964 SC 669. The Court was concerned in that case with a question. Whether what should be the test to determine whether a State is bound by a statute. While dealing with the contention of the Advocate General, whether the State was a Corporation in any sense or not, the Court observed in paragraph 20 as under:

'The learned Advocate-General submitted to us an elaborate and erudite argument as to whether the State was a corporation in any sense, the conclusion which he desired us to draw being that though the State was a body politic, it had not the characteristics of a corporation. In this connection he referred us to various writers on Public International Law and on Political Science and to certain decisions of the American Courts. We do not, however, feel called upon the examine these submissions and pronounce upon their correctness in view of the conclusion we have reached on a construction of the provisions of the Act. We would, however, make two observations: (1) that the mere fact that certain artificial entitles, like corporations art brought, within the scope of the Act, would not by itself rebut the presumptive rule of construction that the State is not bound by a statute unless it is brought within its scope expressly or by necessary implication, (2) it would not be correct to say that the State is not a constitutional or even juristic entity for the reason that it does not partake the characteristics of or satisfy in whose, the definition of a Corporation. The State is an organised political institution which has several of the attributes of a corporation. Under Art, 300 of the Constitution, the Government of the Union and the Government of a State are enable to sue and be sued in the name of Union of India and of the Government of the State, as the case may be. It would not, therefore, be improper to speak of the Union and the State as constitutional entities which have attributes defined by the Constitution.'

6. Following this decision the Division Bench of this High Court consisting of Justice N.M. Miabhoy, as he then was, and Justice J.B. Mehta in the matter reported in (1965) 6 Guj LR 282 in a petition filed by certain traders dealing in ground-nut oil challenging the order of the State of Gujarat under the Gujarat Ground-nut (Transport Control) Order, 1964, which prohibited a person from transporting or causing it to be transported or from offering or accepting for transport whether by road, rail water or air, ground-nut whose or groundnut seeds or ground-nut oil from any place in the State of Gujarat to any place outside the State of Gujarat, and while dealing with the contention of the petitioners that this order did not bind the Union of India and its employees as the expression 'person' used in the Order cannot appropriately be applied to the Union of India, the Court observed in paragraph 20 as under:--

'That brings us to the third and the final contention of Mr. Nanavati. That contention is that the order does not apply to the Union of India and consequently its servants. The argument is supported on two grounds. Firstly, it is contended that the expression 'person' used in the Order cannot appropriately be applied to the Union of India. It is contended that the Union of India is neither a legal nor a juristic body and that, to such a body, the expression 'person' is totally inappropriate. In our judgment the matter is no longer res integra and is covered by a direct authority of the Supreme Court in AIR 1964 SC 669 a case which we shall also have to refer in extenso in regard to the second branch of this contention. In regard t the similar contention this is what Their Lordships observed at p.679:--

'The State is an organised political institution which has several of the attributes of a corporation. Under Art. 300 of the Constitution the Government of the Union and the Government of a State are enabled to sue and be sued in the name of Union of India and of the Government of State, as the case may be. It would not, therefore, be improper to speak of the Union and the State as constitutional entitles which have attributes defined by the Constitution.' The observations were made by Their Lordships in connection with the argument that the State of Punjab was not a person within the meaning of the Displaced Persons (Debts Adjustment) Act. 1951. The observations which Their Lordships made in connection with this contention are applicable with equal force to the contention that the Union of India is not a 'person' within the meaning of the Order..........'

7. In view of these two decisions it will be futile for the petitioners herein to contend that the Government will not be a person entitled to file an appeal under Section 32-P(9). Of course the definition of person in the Bombay General Clauses Act, 1904, is subject to the contrary which can be inferred from the context of the statute or a particular section of the statute. On reading S/32-P, we are of opinion that there is nothing in the context which suggests otherwise that the State Government is not a 'person' who is interested in the order of the Collector determining compensation. On the plain reading of Section 32-P(9) with Section 32-P(4), we are of opinion that the State Government is a party which is interested in the question of determination of the compensation of the lands which vest in it. As a matter of fact, in the appeals, which have been preferred by the State Government, against the order of the authority of 28th February, 1969, determining the compensation, the State Government has made a grievance that the compensation has been fixed by the authority without any opportunity to the State Government to lead or adduce any evidence or without examing any officer of the Government and thereby without any necessary material, which would be helpful for the determination of the question of compensation. In that view of the matter, therefore, the second contention of Mr. Chhatrapati that under Section 32-P(9) the appeals preferred by the State Government were not competent, must also fail.

8. The other questions which have been raised in this petition, namely, that the appeals filed by the State Government through Mamlatdar, Patan, were not appeals properly filed and/or presented, and secondly, that these appeals were beyond the period of limitation and that there was no sufficient cause which could not have prevented the State Government from preferring the appeals within the period of limitation, are not the questions which arise for determination of this Court, as these questions will be open to the petitioners for being urged before the State Government when the appeals in question come up for hearing on merits.

9. The result it, therefore, that this petition should fails and should be dismissed. Rule should be discharged. In the facts and circumstances of the case there should be no order as to costs.

10. Petition dismissed.


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