1. Two questions pertaining to interpretation of S. 32 (1-B) of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as 'the Tenancy Act'), are raised in this petition by a tenant from whom possession was obtained between the appointed day (June 15, 1955) and the specified day (March 3, 1973) within the meaning of S. 32 (IB) of the Tenancy Act by the respondent-landlord otherwise than under S. 29 or any other provisions of the Tenancy Act.
2. The two questions are; (i) whether it is necessary for the tenant to establish that violence or threat was employed in dispossessing him of the land in question and (ii) whether the successor-in-interest of the tenant can claim the right of restoration envisaged by S. 32 (1B) of the Tenancy Act.
3. The facts are not in dispute, The father of the petitioner, deceased Govindbhai, was a tenant in respect of the disputed land belonging to the respondent on the appointed day within the meaning of the Act, that is to say, on June 15, 1955. It is also not in dispute that on the specified day as defined by S. 2 (16-C), the is to say, on March 3, 1973, the tenant was not in possession but the landlord was in possession. On these facts, the Mamlatdar issued a suo motu-notice and called upon the respondent-landlord to show cause why an order directing the landlord to hand over possession to the tenant should not be made under S. 32 (I-B) of the Tenancy Act, as the tenant wanted to cultivate the land personally. The respondent-landlord raised only one contention viz. that the landlord had terminated the tenancy of the tenant and that the tenant had surrendered possession of the land voluntarily and that under the circumstances, even though possession was not obtained by filing a suit under 'S. 29 or in pursuance of any provisions of the Tenancy Act, the tenant was not entitled to possession. This contention was upheld by the Mamlatdar by his order at Annexure 'A' dated November 28, 1974. His order was, however, reversed in appeal by the Deputy Collector, Rajpipla by his order at Annexure 'B' dated January 3, 1976. The landlord, however, invoked the revisional jurisdiction of the Gujarat Revenue Tribunal which reversed the decision of the Deputy Collector and restored the decision of the Mamlatdar. Thereupon, the tenant has invoked the powers of this Court under Art. 227 of the Constitution of India.
4. Before discussing the question of interpretation indicated in the opening Para of this judgment, it will be useful to reproduce the provision embodied in S. 82 (IB) in so far as it is material:
'Where a tenant who was in possession of land on the appointed day and who, on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in St 29 or any other provision of this Act, is not in possession of such land or any part thereof and such land or part thereof is in the possession of the landlord or his successor in interest on the said date and such land or part thereof is not put to a non-agricultural use on or before the said date, then the Mamlatdar shall, notwithstanding -anything contained in the said S. 29 or any other provision of this Act either suo motu or on an application of the tenant made within the prescribed period, hold an inquiry and direct that such land or, as the case may be, part thereof shall he taken from the possession of the landlord or, as the case may be, his successor-in-interest, and shall be restored to the tenant; and thereafter, the provisions of this section and Ss. 32-A to 33-R (both inclusive) shall, so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on which such land or, as the case may be, part thereof is restored to him: Provided that the tenant shall be entitled to restoration of land or part thereof, as the case may be, under this sub-section only if he undertakes to cultivate it personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area'.
5. Now, on an analysis of the aforesaid provision it is evident that all that the tenant has to establish in order to secure possession of the land in question is to establish- that he was in possession on the appointed day; (ii) that he was not in possession on the specified day (March 3, 1973) and (iii) that he was dispossessed before the specified date (March 3, 1973) otherwise than in the manner provided in S. 29 or any other provision of the Tenancy Act.
6. Now, in the present case, the first two ingredients are fulfilled by the petitioner inasmuch as it is an admitted position that on the appointed day (june 15, 1955), the tenant was in possession and that on the specified day (March 3, 1973), the tenant was not in possession. The only question then is whether he was dispossessed otherwise than in accordance with the manner provided in S. 29 or any other provision of the Tenancy Act. Here again, it is an admitted position on the part of the respondent that possession was not obtained either under S. 29 or any other provision of the Tenancy Act. In view of these facts, there is no escape from the conclusion that the tenant was entitled to restoration of possession under S. 32 (1-B) of the Tenancy Act as held by the Deputy Collector. It is difficult to comprehend how any other question can arise in the context of these admitted facts. It was, however, argued before the Gujarat Revenue Tribunal that the tenant had made over possession, after his tenancy was terminated, voluntarily and that in view of his surrender, it cannot be said that the tenant had been dispossessed. In the first place, this argument is totally misconceived, for, a finding of fact has been recorded by the Deputy Collector that the tenant was dispossessed under threats. Even assuming, however, that the tenant was persuaded to surrender his tenancy inasmuch as it is an admitted position that surrender is not in accordance with the provision of the Tenancy Act and that possession has not been obtained either under S. 29 or any other provision of the Tenancy Act, the respondent cannot succeed. In the context of this provision, which is a beneficiary piece of legislation designed in order to protect innocent and illiterate tenants the expression 'dispossession' must apply 'in any case where a tenant who, was previously in possession is not in possession any more. It is not necessary to equate 'dispossession' with 'violent dispossesion' as contended by the learned counsel for the respondent. If the tenant was in possession on the appointed day and if he is not in possession on the specified day, it means that possession of the tenant has been replaced by possession of the landlord. Of necessity, therefore, it would follow that the tenant has been dispossessed. It is in this sense that the expression 'dispossessed' has been employed. If the tenant who was previously in possession was no more in possession it would mean that he was dispossessed. Turning now to the second dimension, S. 32 (IB) requires that dispossession must be either under S. 29 or under any of the provisions of the Tenancy Act. In other words, the transaction by which the tenant lost possession and the landlord obtained possession must be one which must be supported by an order passed by the tenancy court either under S. 29 or under some other provision of the Tenancy Act. The learned counsel for the respondent is unable to contend that the respondent had obtained possession under any of the provisions of the Tenancy Act. Under, the circumstances, the view taken by the Gujarat Revenue Tribunal which is based on a total misreading and a distorted reading of S. 32 (1B) cannot be sustained.
7. The learned Counsel for the respondent then contended that the petitioner was the son of the deceased tenant and that under the circumstances, he was not entitled to claim the benefit of S. 32 (1B). Now, no such contention was raised either before the Mm or before the Deputy Collector or before-the Gujrat Revenue Tribunal It is. therefore, not open to the respondent-landlord to raise such a contention for the first time in this court, which is exercising powers under Art. 227 of the Constitution of India. Assuming however, that it was so open, the expression 'tenant' must be construed as being applicable to the original tenant as also to his successor-in-interest.
8. The petition must, therefore, succeed. The order passed by the Gujarat Revenue Tribunal on 26th March 1976, Annexure 'C', is quashed and set aside. The order passed by the Deputy Collector on January 3, 1976, Annexure 'B' is restored. The petition is allowed. Rule is made absolute. There will be no order regarding costs.
9. Petition allowed.