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Od Zaverbhai Goberbhai Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 570 of 1964
Judge
Reported inAIR1969Guj340; (1969)GLR492
ActsTenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 15(1), 32 to 32R, 72, 88, 88A, 88B, 88C, 88C(1), 88C(2), 88D and 88D(1); Bombay Land Revenue Code Rules - Rules 44 and 53
AppellantOd Zaverbhai Goberbhai
RespondentState of Gujarat and anr.
Appellant Advocate J.M. Patel, Adv. for; M.M. Patel, Adv.
Respondent Advocate G.T. Nanavati, Asstt. Govt. Pleader and; R.M. Gandhi, Addl. Govt. Pleader
DispositionPetition allowed
Excerpt:
.....it was not satisfied that the annual income of respondent no. this request was repeated before the state government in the petitioner's application, dated 14-3-64. without paying heed to this request, the state has passed the impugned order to the effect that the government was not satisfied that the annual income of the landlord exceeded rs. 650/-.the under-secretary, therefore, stated that as the petitioner failed to discharge the burden to prove that the income of respondent no. 1500/-.on these two conditions being satisfied, there is exemption from the provisions of sections 32 to 32r. thereafter section 88d(1) provides that notwithstanding anything contained in sections 88, 88a, 88b and 88c, if the state government is satisfied .(iv) in the case of lands referred to in section 88c,..........income of respondent no. 2 landlord exceeded rs. 1500/-. the petitioner applied on 5-9-63 to the state government for cancelling respondent no. 2's certificate on the ground that the respondent no. 2 was earning an income of rs. 100/- by way of salary being a municipal servant and so, the annual income was of rs. 1200/- by way of salary. he also realised rent of rs. 800/- per month (sic?) from the tenant parsottamdas maganlal of his house which was wrongly assessed in the municipal record at only rs. 420/-. besides, the rent of the said land was rs. 157/-. on these grounds the petitioner claimed cancellation of the exemption certificate as respondent no. 2's income exceeded rs. 1500/-. when this inquiry was held by the mamlatdar, who was deputed for this purpose by the state.....
Judgment:
ORDER

J.B. Mehta, J.

1. The petitioner-tenant has in this petition challenged the order of the State Government, dated 18-6-64 by which the State has under Section 88D(1)(iv) refused to cancel the certificate granted to respondent No. 2 on the ground that it was not satisfied that the annual income of respondent No. 2 landlord exceeded Rs. 1500/-. The petitioner applied on 5-9-63 to the State Government for cancelling respondent No. 2's certificate on the ground that the respondent No. 2 was earning an income of Rs. 100/- by way of salary being a municipal servant and so, the annual income was of Rs. 1200/- by way of salary. He also realised rent of Rs. 800/- per month (sic?) from the tenant Parsottamdas Maganlal of his house which was wrongly assessed in the municipal record at only Rs. 420/-. Besides, the rent of the said land was Rs. 157/-. On these grounds the petitioner claimed cancellation of the exemption certificate as respondent No. 2's income exceeded Rs. 1500/-. When this inquiry was held by the Mamlatdar, who was deputed for this purpose by the State Government, the petitioner wanted summons to be issued to the municipal authority to prove the said income of respondent No. 2. This summons was refused on the ground that the authority had no such power to issue summons in such an inquiry. This request was repeated before the State Government in the petitioner's application, dated 14-3-64. Without paying heed to this request, the State has passed the impugned order to the effect that the Government was not satisfied that the annual income of the landlord exceeded Rs. 1500 and so, no question arose of passing order under Section 88D(1)(iv). In the affidavit filed by the Under-Secretary on perusal of papers the allegations in para 6 are admitted to be substantially correct. In the said allegations the petitioner had stated about the house income of Rs. 800/-. The Under-Secretary further stated in the said affidavit that the summons was refused as there was no power to issue such summons. It is also stated that the landlord had produced a certificate from the Chief Officer, Baroda Municipality, showing that he was an operator employed on daily wages and he earned for 15-20 days in a month and his yearly income came to Rs. 650/-. The Under-Secretary, therefore, stated that as the petitioner failed to discharge the burden to prove that the income of respondent No. 2 exceeded Rs. 1500/-, the impugned order was justified.

2. Section 88C(1) provides for exemption of lands which fulfil two conditions: (1) the landlord does not hold such land leased exceeding the economic holding, and (2) the total income of the landlord including rent of such land does not exceed Rs. 1500/-. On these two conditions being satisfied, there is exemption from the provisions of Sections 32 to 32R. Such tenant of the certified landlord becomes an excluded tenant who becomes a deemed purchaser under Section 32U only on 1-4-62, if the landlord had not terminated his tenancy nor applied for possession; or if an application was finally rejected, on the postponed date. Thereafter Section 88C(2) requires that the person eligible to exemption provided in said sub-section (1) shall apply in the prescribed form to the Mamlatdar for a certificate that he is entitled to such exemption within the prescribed period. Sub-clause (3) provides that on receipt of such an application the Mamlatdar shall after giving notice hold inquiry and decide whether the land leased by such person is exempt under Sub-section (1) from the provisions of Sections 32 to 32R. Thereafter Section 88D(1) provides that notwithstanding anything contained in Sections 88, 88A, 88B and 88C, if the State Government is satisfied . . . .(iv) in the case of lands referred to in Section 88C, that the annual income of the person has exceeded Rs. 1500/- or that the total holding of such person exceeds an economic holding, the State Government may, by an order published in the prescribed manner, direct that with effect from such date as may be specified in the order such land or area, shall cease to be exempted from all or any of the provisions of the Act from which it was exempted under the aforesaid sections and any certificate granted under Section 88B or 88C shall stand revoked. When the two sections 88C and 88D are read together, it is clear that the relief which is granted to a landholder by giving this exemption from Sections 32 to 32R is dependent on the two objective conditions being satisfied; (1) as to said land leased not exceeding economic holding, and (2) as to the annual income including rent of such land not exceeding Rs. 1500/-. Even if a certificate is granted after inquiry under Section 88C, it is liable to be cancelled by the State Government under Section 88D(1)(iv). Therefore, there can be no doubt that the State Government which is given power to decide these substantial rights of the contesting parties must act judicially. The satisfaction which is contemplated in Section 88-C(1) of the State Government can never be subjective satisfaction but it must be objective satisfaction based on relevant evidence led before the State Government, who is the third party to determine the lis between these two contending parties. The nature of inquiry under Section 88D(1) must be a judicial inquiry when such an important function is delegated to the State as a third party to determine lis between the two contending parties affecting such substantial rights. Even though no express provision is made as to the nature of this inquiry, it must be held to be a judicial inquiry and its nature cannot be different than the nature of the earlier inquiry under which exemption was granted under Section 88C. As that inquiry under Section 88C starts with an application as prescribed under Rule 53, the procedure of such inquiry before the Mamlatdar must be as before the Mamlatdars' Courts Act under Section 72 of the Tenancy Act and to the extent that the said Mamlatdars' Courts Act is silent, the procedure shall be under the residuary Rule 44 of the Bombay Land Revenue Code Rules of an inquiry under that Code. Therefore, there can be no doubt that even under Section 88D(1)(iv) the State Government was bound to hold an inquiry in accordance with the provisions of the Mamlatdars' Courts Act. Section 15(1) of the said Act in terms provides that where either party requires any witness to be summoned to appear on the day of hearing, the Mamlatdar shall issue summons for the purpose when an application is made. In view of this express provision the State Government and the Mamlatdar obviously erred in holding that they have no power to issue summons in this inquiry. Thus, the most important evidence which the petitioner wanted to lead in the form of municipal record showing the salary drawn by respondent No. 2 has been withheld. Therefore, on this short ground, the petition ought to be allowed.

3. Besides, the order does not disclose nor the affidavit helps us to find out whether the other important items which were mentioned by the petitioner were taken into account. Even on the basis of the salary of Rs. 650/- which was accepted by the State Government, if the other Income of the house rent of Rs. 800/- and of the rent of the land in question of Rs. 157/- were included, the income of respondent No. 2 clearly exceeded Rs. 1500. The State Government has also taken into account some certificate of the Chief Officer at the back of the petitioner. In such a judicial inquiry even though the data may be collected by the subordinate officers, the State Government must allow the parties a full opportunity to lead their evidence by helping them by issue of process as provided under the Mamlatdars' Courts Act, and the relevant material must be obtained after hearing the parties, and the decision must be reached on these objective facts. Mr. Patel rightly relied upon the decision of Bakshi J. in Spl. Civil Applns. Nos. 901 and 835 of 1963. D/- 20-3-1968 = (AIR 1969 Guj 88) where my learned brother held that this inquiry is a judicial inquiry on the objective facts and it was not an administrative inquiry based on the subjective satisfaction of the State Government. My learned brother held that the petitioner ought to have been heard by the Under-Secretary after the data was collected by him by disclosing the report to the petitioner. No material at the back of the petitioner should be utilised and any other material which was sought to be relied upon must be used only after the petitioner was given an opportunity to explain the same, and the principles of natural justice must be followed in such an inquiry. The order in the present case is completely a perfunctory order and the petitioner has not been given any opportunity to lead evidence on this vital question about the income of respondent No. 2 exceeding Rs. 1500/-. The petition must, therefore, be allowed. The order of the State Government is quashed and the matter shall go back to the State Government for deciding the petitioner's application for cancellation of the Certificate in accordance with law in the light of the above observations. Rule is made absolute. There shall be no order as to costs in the circumstances of the case. The matter should be expeditiously disposed of as it has been sufficiently delayed.


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