1. This petition under Article 227 of the Constn. of India seeks to challenge the order passed by the Gujarat Revenue Tribunal in revision application No. TEN. B. A. No. 598 of 1975 by which the Gujarat Revenue Tribunal exercising its Dower under Section 76 of the Bombay Tenancy and Agricultural Lands. Act. 1948. (hereinafter referred to as 'the Tenancy Act'), dismissed the revision application of the petitioner-tenant. The petitioner also challenges in this petition. the subsequent review order Passed by the Tribunal in Application No. TEN. C. A. 20 of 1976 by which the Tribunal refused to review its earlier order.
2. The question Posed for consideration of this court in the present proceedings is a short one viz whether the Petitioner-tenant's entitled to be treated as a deemed Purchaser of agricultural land bearing S. No. 203 admeasuring 1 acre-8 gunthas situated in the sum of village Thalota, in Visnagar taluka of Mehsana district under the Provisions of Section 32(IB) of the Tenancy Act.
3. In order to appreciate the real controversy between the parties it is necessary to glance through the relevant facts leading.. to the present proceedings. The petitioner's deceased father Madhavdas was the tenant of the aforesaid land. The land in question belongs to the respondent-landlady. She was a widow prior to 1-4-1957. Consequently, the petitioner's father could not be declared to be a deemed purchaser under the provisions of S. 32 read with section 32-G of the Tenancy Act on account of the operation of Section 32-Y of the Act. In an inquiry in 1958, held under Section 32-G of the Act. The then Mamlatdar and Agricultural Lands Tribunal held that the Petitioner's deceased father could not be held a deemed purchaser of the land in question as the respondent-landlady was a widow prior to 1-4-1957 and accordingly sale was postponed by an order of the Mamlatdar and A. L... T. dated 11-6-1958 There is no dispute about these facts.
4. Thereafter the Gujarat Legislature by Amending Act, No. 5 of 1973, amended the Tenancy Act. The said Amending Act came into force on 3-3-1973. As per the added definition of the word 'specified date' as defined in Section 2(16C). specified date, means the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972. The 'said date was 3-3-1973 as stated above. By the aforesaid Amending Act, two provisions of the Tenancy Act, so far as relevant for the Purpose of the Present Petition were amended. Under Section 31(4) of the Act. as inserted by the aforesaid Amending Act in the then existing Section 31 a disabled landlady, like the respondent-landlady was given a locus poenitentiae to terminate the tenancy of the existing tenant within a Period of six months on the coming into operation of the Amending Act and if the concerned disabled widow-landlady did not avail of the said locus Poenitentiae the tenant of the concerned land was made the deemed purchaser thereof by virtue, of Section 32-F read with Section 32-F of the Tenancy Act. It appears that in the Present case the respondent-landlady did not exercise the right to get possession of the land in question within the Period of six months from the specified date. viz. 3-3-1973 up to 3-9-1973. Under these circumstances the Mamlotdar and A. L T. Visnagar initiated a suo motu Proceeding under Section 32-F (Presumably read with Section 32FF) and further read with Section 32-G and issued notices to the petitioner as well as the respondent-landlady to appear before him in 'the said proceedings to show cause why the petitioner should not be held to be a deemed purchaser of the land in question under the provisions of the 'Amending Act 5 of IM. The said proceedings were initiated by the Mamlatdar and A. 4 T. Visnagar an 10-12-1974.
5. It is Permanent to note at this stage that by the time the Mamlatdar and A. L. T. initiated the suo motu proceedings for deciding the question whether the Petitioner had become the deemed Purchaser of the land in. question the original tenant of the land, that the Petitioner's father Madhavdas had already expired. Consequently, a notice was issued to the Petitioner as his heir and legal representative. The petitioner as the sole heir and legal representative of the deceased tenant and the respondent-landlady appeared before -the Mamlatdar in the suo motu Proceedings. Both were examined on 5-3-1975 by the Mamlatdar. In his deposition before the Mamlatdar on-5-3-1975 the Petitioner stated on oath that his father had expired about three years prior thereto. Thus the petitioner's father the original tenant seems to have expired somewhere in the year 1972.
6. The Mamlatdar and A. L.T. in the suo motu Proceedings came to the conclusion that as originally the landlady was the widow on 1-4-1957, the petitioner's father the original tenant of the land could not be held as the deemed purchaser and the sale was accordingly positioned by a prior order of 1958. The Mamaltdar noted a further fact that the Petitioner's father in his life time had voluntarily handed over Possession of the land in dispute to the respondent landlady and that from 1969 the land appeared to be in personal cultivation of the respondent all thought out thereafter. It was therefore held by the Mamlatdar that there was no question of fixing any Purchase Price in favour of the Petitioner so far as the land in dispute was concerned and hence he dropped the proceedings under Section 32-G which he had started suo motu earlier.
7. The petitioner, being aggrieved by the aforesaid order of the Mamlatdar and A. L. T. carried the matter in appeal before the Assistant Collector. Mehsana His appeal came to be dismissed. Thereafter he preferred revision application No. TEN. B. A, 598 of 1975 before the Gujarat Revenue Tribunal invoking its revisional jurisdiction under Section 76 of the 'Tenancy Act. Before the Tribunal it was contended on behalf of the petitioner that he was entitled to be declared a deemed Purchaser of the land in question and to be restored n Possession of the said land in the back ground of the proved and admitted facts as per the provision on of Section 32(1-B) of the Tenancy Act brought on the statute book by the Gujarat Amending Act No. 5 of 1973. The Tribunal entertained the said contention and held that the said provision would not be applicable to the facts of the Present case because Possession of land from the tenant was voluntarily banded over to the respondent landlady in 1969. On the aforesaid reas6nino the Tribunal held that neither Section 32(113) nor provision of Section 32-F read with Section 32-FF helped the petitioner tenant, and consequently, the Tribunal held that the Petitioner tenant was not entitled to be declared a deemed Purchaser under either of the aforesaid provisions. The result was that the petitioner's revision application came to be dismissed by the Tribunal by its order dated 11-21976. The Tribunal's order is at Annexure V to the petition. Thereafter it appears that the petitioner filed an application before the Tribunal praying for review of the earlier order of the Tribunal on the ground that the order, on the basis of which the respondent' landlady had got her name entered in the record of rights merely showed that she had obtained Possession of the land without following the Provisions of the Tenancy Act. The said earlier order of the Mandatdar and A. I. T. dated 23-61969 was produced before the Tribunal and on that basis, the Tribunal was requested to review its earlier decision. The Tribunal however, took the view that the prayer submitted by the petitioner-did not squarely fall within the review Powers of the Tribunal and hence the Tribunal refused to review its earlier decision: The review judgment, of the Tribunal is dated 12-11-1976 and is at annexure ' E' to the petition
8. As stated above the petitioner has challenged both the orders of the Tribunal at Annexures C and B to the petition, by filing the present proceedings under Article 227 of the constitution Of India it may be stated that though the petitioner has styled the petition as one under Article 226 of the Constitution as the Tribunal's decisions were in exercise I of its judicial Powers under Section 76 of the Tenancy Act the present proceedings would in substance be under Article 227 of the Constitution and I have accordingly dealt with this petition under Article 227 of the Constitution.
9. The respondent-landlady, though duly served has not appeared to contest the present proceedings.
10. Mr. J. M. Patel learned Advocate appearing for the petitioner-tenant raised the following submissions in support of the petition:-
1. That the Petitioner was entitled to be declared a deemed Purchaser of the land in question on account of the combined operation of Section 32-F read With Section 31(4) and Sees. 32-FF and 32-G of the Tenancy Act.
2. Alternatively, it was submitted by Mr. Patel that even assuming that the aforesaid provisions do not cover the case of the Petitioner in any case the provisions of Section 32(IB) of the Tenancy Act squarely apply. the facts of the Present case and the petitioner was entitled to be held a deemed purchaser under the said Provisions and be restored possession of the land in question.
11. The aforesaid submission of Mr. Patel will have to be dealt with in the light of certain admitted and well established facts on the record of this case. These facts which clearly emerge on the record of this case are as under:
(i) The respondent landlady who owned the land in question was a widow prior to 1-4-1957:
(ii) The land in question was originally in possession of the petitioners father, Madhavdas who was, admittedly a protected tenant of the land.
(iii) As the respondent landlady was a widow on 1-4-1957 the deemed purchase Provisions of the Tenancy Act as 'Per Section 32 of The Act, could not , be pressed in service by the petitioners father who was the Protected tenant as the landlady was the widowed landlady. By combined operation, of Section 32-F(1) and Section 31(1)(3) of the Tenancy Act as these provisions stood at the' relevant time the compulsory Purchase of the land in favour of the tenant was postponed.- The then Mamlatdar and A.L.T by his order, dated 11-6-1958 had Postponed the sale of the land in favour of the petitioner's father who was then a sitting tenant.
(iv) The Tenancy Act was amended by Gujarat Act No. 5 of 1973. Under these amended provisions, Postponed sales an account of the , fact that the concerned landlady was a disabled lady viz. a widow were made subject to the operation of compulsory purchase legislation 'by giving locus poenitentiae to the widowed landlady to apply Within six months of the coming into force of the Amending Act No. 5 of 1973 to met Possession of the land , in question. If she failed to avail of that opportunity. the concerned tenant of the land was made the deemed Purchaser On expiry of the Period of six months from the date on which the Amending Act came into force - that is on expiry of six months from 3-3-1973.
(v) The petitioner's father. however, during his lifetime appears to have voluntarily handed over possession of the land in question to the respondent landlady and appears to have walked out of the land.. The record of rights, which were produced before the Mamlatdar clearly showed that up to 1961-62 the petitioner's father was shown to be in actual possession of the land but in 1962-63, he seems to have left possession and the land Appeared to have been taken in personal cultivation of the respondent-landlady. The method of cultivation was changed from Mode No. 3 to Mode No. 1. that is from cultivation by tenant to self cultivation by the landlady
(vi) The respondent-land-lady having obtained possession of the disputed land out of court from the Petitioner's father. had applied in 1969 to the Mamlatdar. Visnagar to delete the name of the. 13etitioner's father as she had already obtained Possession from him voluntarily The Mamlatdar, Visnagar by his order dated 23-6-1969 had ordered that the petitioner's father's name be' deleted from the record of rights as he seemed to have left the possession of the land earlier . and accordingly, entry as - a protect-w ed tenant which was there on the record of rights in favor of the petitioner's father. deserved to be, deleted. The said order of the Mamlatdar in mutation Proceedings was produced before the Tribunal by the petitioner in review Proceedings and which is also annexed to this Petition as Annexure D. It therefore appears clear that the 13etitionees father who was the Protected tenant of the land in question had voluntarily walked out of -the land and handed over possession of the land to the respondent somewhere in 1962-63 and even the entry in his favour as a protected tenant was L deleted by the order of the Mamlatdar dated 23-6-1969 in mutation - proceedings.
(vii) From the time the respondent obtained possession (if the land ham the petitioner's father out of court. the, respondent, has remained continuously in Possession of -the land an owner-cultivator. She has it terms deposed to that effect before the Mamlatdar land A. L. T. la the present suo motu Proceedings which -were initiated by the Mamlatdar Pursuant to suo, motu notice dated 10-12-1974.
(viii) By the time Gujarat , Amending Act No. 5, of 1973 came on the statue book that is on 3-03-1973. the respondent was already in actual possession was voluntarily given up by the petitioner's father who was the protected tenant, in favour of the, land lady.
(ix)The Petitioner's father died some where in 1972.
12. The aforesaid facts are well borne out from the record of the case and stand practically undisputed on the record. It is in the light of the aforeside well borne out and undisputed facts that the moot question which has been posed for my consideration has to be decided. Viz.. whether the Petitioner, under the aforesaid circumstances and in the back-ground of the aforesaid Proved and admittid factscan be said to have become a deemed Purchaser of the land in question under the provisions of the Gujarat Amending Act No. 5 of 1973.
13. It is now time for me to deal with the two questions of law raised by Mr. Patel for my consideration. Mr. Patel `s first submission was that by Gujarat Amending Act No. 5 of 1973,, in a cam Where compulsory sale of land to sitting tenant was postponed earlier because of the fact, that the concerned landlord or landlady were disabled persons, such disabled landlord or landlady were given chance by the Amending Act to apply for Personal cultivation. of the land In. question within six months from the date on which the Amending Apt came in to force. Mr. Patel, submitted that in the present case the respondent failed to apply to the Mamlatdar for obtaining actual possession of the disputed land within the Period of six months from the date on which the Gujara Act 5 of 1973, came into force and, therefore, the petitioner was entitled to be declared to be. a deemed purchaser on account of the combined operation of Section 32-F read with Sections 32-FF, 31 (4) , and 32-G of the Tenancy Act.
14. In order to appreciate the aforesaid submission of Mr. Patel, it is necessary to have a look at the scheme 0f the Act Under Section of the Tenancy Act an the first day of April 1957, that is he tiller's. day. every tenant shall, subject to the other Provisions of this section ' the Provisions of the next succeeding ~sections. be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the sai4 day, the land held by him as a tenant., Thus. under the pivot Section a' every tenant of agricultural legend was made a deemed purchaser on 1-4-1957 of the land which was hold by him as a tenant thereof. But the said provision Was subject to the Provisions of, other, sections of the Act. That necessarily . brought into effect Section 32-F. Section 32-F as It stood on 1-4-1957 read as under:-
'32-F. (1) Notwithstanding anything contained in the preceding sections,-
(a)where the landlord is a minor, or a widow. or a person subject to any mental or physical disability the tenant shall have the right to Purchase such land under Section 32 with in one year from the expiry of the Period during which such landlord is entitled to terminat4 the tenancy under Section 3L ....... Thus, Section 32-F(1) had an overriding effect over Section 32. Consequently, where the concerted landlord of the land was a minor or a widow or any other disabled person. the concerned tenant was not automatically made the deemed Purchaser on 1-4-1957 but he had to wait till such disabled landlord could' try to obtain Possession of the land under Section 31 by terminating tenancy of the concerned tenant. Under Section 31 as it stood then. a Provision was made for disabled landlords to try to ob, aim possession form the concerned tenants as per the Provisions of Section 31(3) of the Act as it stood then. The said Section 31 (1) and (3) read as under:- '(1) Notwithstanding anything contained in Sections 14 and 30 but subject to secs 31-A to 31-D (both inclusive) a landlord not being a landlord within the meaning of Chapter 111-AA may after giving notice and making an application for possession as provided in sub-section (2), terminate the tenancy of any land except a Permanent tenancy. if the landlord bona fide requires the land for any of the following Purposes:-
(a) for cultivating Personally. or
(b) for any non-agricultural purposes
x x x
(3) Where a landlord is a minor, or a widow. or a person subject to mental or Physical disability then such notice may be given and an application for Possession under Section 29 may be made.
(i) by the minor within one year from the date on which he attains majority-,
(ii) by the successor-in-title of a widow within one year from the date on which her interest in, the land ceases to exist:
(iii) within one year from the date on which mental or physical disability ceases to exist, and ......
A mere look at Section 32(1), Sec 32-F(1)(a) and Section 31(1) and (3) shows that if a landlady was a widow on 1-4-57, then on a combined operation of these relevant provisions. the land in question which was owned by her cannot be made the subject matter of compulsory purchase under Section 32(1) as Section 32-F did supersede See. 32 (1) and under Section 32-F(1), even successor-in-title of the widow could terminate the tenancy of the concerned tenant within one year from the date on which her interest in the land ceased to exist. Thus. for the entire lifetime of the widow. the land in question was made immune from the operating of the compulsory purchase provisions and her successor was also given a right to apply for possession on the ground of personal cultivation under Section 29 read with Section 31(3). Thus, as the Tenant stood at the relevant time, that, is on 1-4-1957, the petitioner's father who was admittedly a protected tenant could not have become a deemed purchaser of the land on the tillers, day i.e. 1-4-57 and even thereafter during the lifetime of the widow and even after her death, her successor-in-interest' would have been entitled within one year of widow's death to apply for Possession of the land in question from the concerned tenant. Thus, during the entire Period, there would have been no question of any deemed purchase of the land by the petitioner's father. Under these the-n existing provisions as they stood at the relevant time the Mamlatdar and A. L. T. declared in 1958 that the compulsory sale of the land in question in favor of the Petitioner's father stood postponed during the lifetime of the respondent. The matter would have rested them and nothing further would have happened during the lifetime of the respondent if the Legislate had not intervened by enacting Gujarat Act 5 of 1973 which came into force on 3-3-1973. By that Amending Act, the Legislature cut down the time, available to disabled landlord to try to get Possession of the land in question from the existing tenants. A last opportunity was given to the concerned disabled landlords to apply for Possession of the, land within six months from the date on which the Amandine Act came, into force. So far as the respondent is concerned, as she was a widow prior to 1-4-1957, in her case, she became entitled to apply for Possession of the land by terminating tenancy of the sitting tenant as per provisions of Section 31(4) of the Act. Section 31(4) which was inserted by Gujarat Act 5 of 1973 by Section 6 thereof, reads as under:-
31 (4) Notwithstanding anything contained in sub-section (3).
(a) the right conferred under the said sub-section (3) on a landlord who is 9 minor or a Person subject to mental go physical disability shall. after the specified date, be exercisable,
(i) by such landlord. in a case heft the period of one year within ' which such right may be exercised under subsection (3) has commenced. Within such period of one year or within a period of six months from the specified date, whichever period expires earlier-,
(ii) by the guardian or other legal representative of such landlord. in a can where the Period of one year within which such right may be exercised under sub-section (3) has not commenced, within a period of six months from the specified date,
(b) the right conferred , under the said sub-section (3) oft a landlord who was a widow on the first day of April 1957 shall, after' the specified date:
(i) be exercisable by the widow within a Period of six months from the admitted date:
(ii) be exercisable. In a case where the interest of the widow in the land, has ceased to exist, by reason Of her death or otherwise. before the specified date but the period of one year within which her successor-in-title is entitled exercise. the right under Section 31 has not expired, by the successor-in-title of the widow within a period for one Year the date on which her interest in Abe land ceased or. within k period of three months from the specified date, whichever Period expires earlier.
(III) In a case where the interest of the widow in the land ceases to exist on or after the specified date, expire on the date on which her interest so ceases to exist.'
Section 31(4)(b)(i) clearly shows that after 3-3-1973. the Legislature expressed its intention differently and it gave a widow-landlady locus poenitentiae for applying for Possession of the land with in a period of six months from the specified date. The. definition of 'specified date' was inserted by the said Amending Act by adding Section 2(16-C) of the Tenancy Act. I have already reproduced earlier the definition of the term 'specified date' which means 'the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972.' That date is 3-3-1973. Thus, the respondent who was a widow could have applied within six months from 3-3-1973 for getting actual Possession of the land in question. Now. ' in case. such disabled landlady failed to take the advantage of the aforesaid locus poenitentiae, the provisions of Section 32-F would become applicable. By combined operation of Section 32-F(1)(a) which Is already extracted above, and the amended provisions of Section 31(4), it appears clear that if the concerned disabled widow landlady failed to take the advantage of locus Poenitentiae granted to her by the Legislature, to apply for. Possession. The concerned tenant will have a right to purchase such land under Section 32, within one Year from the expiry of the of the Period within which the said landlady was entitled to terminate the tenancy under Section 31. Now. Even that One year's period which was available to the tenant to become a deemed Purchaser after the expiry of the period during which the respondent. wag entitled to terminate the tenancy. was cut down by the Legislature by inserting Section 32-F(1-A) by earlier Amending Act 16 of 1960. The said See. 32-F (1-A) reads as under:_
32F '(1-A). On and after the date of the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1960 (hereinafter referred to in this sub-section as 'the said date'). every tenant who has not exercised his right of purchase within the period of one year within which it may be exercised under sub-section (1) shall. if the said Period has commenced be deemed to have Purchased the land on the said date. whether the Period has expired or not: and if the period has not commenced, he shall be deemed to have purchased the land on the date on which the Period would have commenced but for the Provisions of this subsection'.
Thus. in case of the widow-landlady, who did not avail of the locus Poenitentiae given by the Legislature to apply for actual Possession of the concerned land under S. 31(4) within six months of the coming into force of the Amending Act, that is the specified date, the concerned tenant would be entitled to be held a deemed Purchaser of the land an the day on which the Period within which the concerned landlord could terminate the tenancy actually expired. In the Present case, the said Period available to the respondent would expire on 3-9-1973 under S. 31(1)(4). Thus, on 3-9-1973, the petitioner would be entitled to become the deemed Purchaser. (in. account of the c9mbined operation of S. 32F(1)(1A) and S. 31(4) as amended by the Amending Act. It is also necessary to note at this stage Section 321PF which' was also brought on the statute book by the same Gujarat Act 5 of 1973 which reads as under-
'(1) Notwithstanding anything contained in the preceding sections, a person who is a tenant within the meaning of sub-clause W of clause (19) of Section 2 shall be deemed to have purchased. the land in his possession of which he to the tenant. free from all encumbrances subsisting thereon. on the specified date.
(2) The Provisions of Sections 32 to 32B (both Inclusive) and Sections 32G to 32R (both Inclusive) shall, so far as may be applicable, apply to such purchase.'
15 . A mere look at the aforesaid. Provisions shows that it can be pressed in service in case where the sitting tenant during the continuance of his tenancy had surrendered his tenancy rights in favour of the landlord and in spite of such surrender. his case was covered by the definition of the word ' tenant' in S. 2(18)(d) of the Act. S. 2 (18) (d) as inserted by Amending Act 5 of 1973 by Section 2. (3). S. 2 (18) (d) as brought on the statute book by the said Amending Act. reads as under.-
'2 (18) - 'tenant' means a person who holds land on and Includes-
X X X X (d) a person who. after the surrender of his. tenancy in respect of any land at any time after the appointed day but .before the specified date has continued, or is deemed to have continued. to, remain in actual possession. with or without the consent of the landlord of such land till the specified date.','.
The said provisions can apply provided it, was the case of the petitioner that his father had surrendered his tenancy rightq in fwfour of the respondent at any time after the appointed day but before the specifted date. The appointed 'day as defined by S. 2 (2B) , means 15-6-1955. Thus, if it were the Can' of the petitioner that his father who . was the sittift ten ant of the land had surrendered his teft an~y rights 'in favour *of the respondents between 15-6-1955 and the specified data that Is 3-3-1973 and if he had satisfied other requirements of S, 2 (19) (d), the present case could have' been brought within the framework of Section 32-FF. It must be stated here that it is not the cas e of the petitioner and it was not his case before any of the,authorities below that his fathir had surrendered his ten ancv rights in favour of the respondent. Surrender of tenancy rights is a wellknow concept and provision for the same is 'laid, down by S. 15 of the Act which as it stood up, to 3-3-1973. read as Under.-
(1) A tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord.-
Provided that such surrender shall be in writing, and verified before the Mamlatdar in the prescribed manner. (2) Where a tenant surrenders his tennancy, the landlord shall be entitled, to retain the. land so surrendered for the like purposes, and to the 1ike extent, and in so far as the conditions are applicable subject to the . like conditions as are provided in Sections 31 and 31A for the termination of tenancies.
(2A) The Mamlatdar shall. In respect of the surrender verified under sub-section (1), hold in inquiry and decide whether the landlord is entitled under subsection (2), to retain the whole or any portion of the land so surrender of and specify the extent and particulars in that behalf .
(3) The land or any portion thereof which the landlord is not entitled to retain under sub-section (2) shall be liable to be disposed of in the manner provided under clause (c) of sub-section (2) of Section 32P.
16. As the facts an the record of the case stand. it is not the contention of either side that the petitioner's father at any time had given an application to the Mamlatdar for surrender of his tenancy rights in favour of the respondent within the two terminal dates as provided by S. 2(18)(d) viz. the appointed day 15-6-1955. and specified date viz. 3-3-1973. Consequently, S. 32-FF cannot be pressed into service by Mr. Patel for getting the petitioner declared A deemed purchaser. In this connection. it Is interesting to note that the concept of deemed - possession as envisaged by Section 2(18)(d) of the Act.' as brought on the statute book by Amending Act 5 of 1973 gets its reflection in S.. 84CC of the Tenancy Act brought on the statute book by the Amending Act 5 of 1973 by S. 20 thereof. The said S, 84-CC reads as under:-
'84CC. (1) Where any person who had surrendered his tenancy in respect of any land or part thereof at any time after 31st March, 1957 but before 5thDecember, 1972, the date of the publication in the Official Gazette of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Bill, 1972 (here inafter referred to as the latter date) and had continued to remain in actual possession, with or without the consent of the landlord, of such land or, as the case May be part thereof till the latter date had been dispossessed of such and or part thereof by the landlord at any time during the period between the latter date and the specified and the Mamlatdar suo motu or on the application of the person so dispossessed or of any other person interested, in such land or part thereof has reason to believe that such dispossession was effected in anticipation in order to defeat the object of section 32FF. the Mamlatdar shall issue a notice in the prescribed form to the landlord to show cause as to why such dispossession should not be declared to have been effected in anticipation in order to defeat the object of Section. 32FF.
(2) If after hearing the landlord and holding such inquiry as the Mamlatdar thinks fit, the Mamlatdar declares that the dispossession was effected in anticipation in order to defeat the object of Section 32FF, he shall ' direct that the land or. as the case may be, Part thereof. shall be restored to the person o has been dispossessed.
(3) If the person to whom the land. or, as the case may I be, part thereof, is directed to be restored refuses to take Possession thereof. the land shall be deemed to vest in the State Government free from all encumbrances lawfully subsisting thereon on the , date of such vesting -and shall be disposed of in the* manner provided in sub-section (4) of Section 84C.
(4) If the person to whom 'the land or as the case . may be, part thereof. is directed to be restored takes possession thereof, such Person shall be deemed to have continued to remain in actual possession thereof during the period of dispossession as if he had not been dispossessed of such land, or. as the case may be. part thereof''.;
It is obvious that the said provisions Pan be of no avail to the Petitioner because it is not his case that his father had surrendered his tenancy after 31-31957 but before 5-12-1972 and had yet continued to remain in actual Possession thereof with or without the consent of the landlady and that he had been then dispossessed at any time between 5-12-1972 and 3-3-1973. As I have already stated above. no surrender Proceedings under S. 15 ever took place in the present case and consequently, the question of applicability of S. 32FF of S. 2(18)(d) does not arise for consideration at all on the facts of the Present case.
17. It also appears clear on the facts of the case that the Petitioner is also not entitled to be declared a deemed purchaser under S. 32F(1) read with S. 31(4) of the Act only on the ground that the respondent-landlady failed apply to get actual possession of the land in question within six months from the specified date that is from 3-3-1973.The reason is obvious. She had already obtained possession of the land from the Petitioner's father out of court when he voluntarily walked out of the land and handed over Possession to her some Where in the year 1962 as noted by the Mamlatdar. It, therefore. appears clear that when she was already in actual possession since years and from at least 10 years Prior to coming into force of the Amending Act 5 of 1973. there was no occasion for her to again apply the Mamlatdar for getting possession of the land under S. 31(4) of the Act which was brought on the statute book by Amending Act 5 of 1973. It would have been an exercise in futility' Consequently, the further question about' application of S. 32F(1) on the respondent-landlady not availing of her opportunity to obtain benefit under S. 31(4) as amended by the Amending Act 5 of 1973 did not survive for consideration.
18. There was no sense in applying for Possession of the land in question after 3-3-1973 for the simple reason that the respondent was already in possession of the land and she was cultivating, it personally from 1963 onwards. There arose no occasion for her to slay the slain. Thus, the entire gamut of S. 31(4) and S. 32F(1) did not apply to the facts of the present case. Consequently. Mr. Patel cannot draw any sustenance from the said Provision to acquire status of a deemed Purchaser for the petitioner-tenant. It must, therefore, be held that the Revenue Tribunal was quite justified when it took the view concurring with the lower authorities that the Petitioner cannot be held to be a deemed purchaser of the land in question under the Provisions of S. 32F(1) read with S. 31(4) of the Act.
19. That takes me to the alternative contention of Mr. Patel for the Petitioner. Mr. Patel, submitted that even assuming that the petitioner cannot be made the deemed purchaser of the land In question under the provisions of Section 32F(1) read with S. 31(4) or under S. 32FF of the Act. even then on the Proved and admitted facts on the record of the case, the Petitioner was required to be held a deemed purchaser under S- 32 (1B) of the Act, It is pertinent to note that the said provision was also brought on the statute book by the same Amending Act 5 of 1973. The said provision is required to be extracted verbatim:-
'(1B) Where a tenant who was in possession of land on the appointed day and who on account of his begin disposed of such land or any Part thereof by the landlord at any time before the specified date otherwise than in the manner provided in Section 29 or any other provisions 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 Section 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 be 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 Sections 32A to 32R (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 Dart thereof on the date on which such land or. as the case may be, part thereof is restored to him'.
20. Mr. Patel submitted that the Tribunal before whom this provision was Pressed in service wrongly held that the said provision was not applicable to the facts of the present case on the supposition that the petitioner's father, sitting tenant of the land, had already surrendered his tenancy rights so far as the land in question goes in favour of the respondent. Mr. Patel invited my attention to the reasoning of the Tribunal on this aspect as found in Para 6 of the judgment of the Tribunal in revision application It is necessary to reproduce the said reasoning of the Tribunal as under :-
'Section 31(1B) also would not apply because the possession of the tenant was taken by the landlady under t e surrender provisions of the Tenancy Act in the year 1969'
Mr. Patel submitted that the aforesaid reasoning is patently erroneous in law. In that connection, Mr. Patel invited my attention to the order of the Mamlatdar, Visnagar dated 23-6-1969 being A. L. T. Vashi/101 which was already produced before the Tribunal in review proceedings and which has been annexed to the Present petition as Annexure 'D'. The Tribunal seems to have heavily lied upon the said order to come to the conclusion that the petitioner's father had already surrendered his tenancy rights in favour of the respondent pursuant to the said order of the Mamlatdar dated 23-6-1969. In that connection. the Tribunal has noted as under in Para 5 of its judgment:-
'The mutation entry is at page 27 of the Mamlatdar 's record. That mutation entry No. 579 dated 16-4-1969 mentions that the name of the Present applicant's father was in revenue record as a protected tenant; that he had applied to the Mamlatdar. and A. L. T. had ordered on 1-3-1969 to delete his name and that order No. 101 dated 26-3-1969 was issued to delete the name of the tenant and that, therefore. that mutation entry No. 579 was being effected. So, it is clear that the Present applicant's father had surrendered the tenancy during his lifetime and that some proceedings before the Mamlatdar had taken place and that inquiry was also held in the matter'.
The aforesaid reasoning of the Tribunal clearlv shows that the order of the Mamlatdar dated 23-6-1969 being annexure to this petition. has been treated by the Tribunal to be an order unde; which the petitioner's father had surrendered his tenancy rights in favour of the resvondent. Now, a mere look at the said order clearly shows that it was Dursuant to an application given by the respondent in 1969 requesting the Mamlatdar. Visnaear to delete the name of the Petitioner's father from the record of rights as a protected tenant. for thesimple reason that from 1962-63, she had already obtained Possession of the land from him. The said appl , ication seems to have been granted by the Mamlatdar by his order dated 23-6-1969 which is on the reverse of that' application and, which is styled as A. L, T. Vashi-101. The order shows that it Was an order in mutation proceedings as passed by the Mamlatdar and the Maxnlatdar as Revenue Authoritv acting under the Land Revenue Code. directed that Proper mutationentry be made, thelmame' of the petitionr's father be removed from the re cord as protected tenant and the land be mutated in the name of the respondent-landladv as being in Oersonal'cul tivation. This order which was really passed under the Land Revenue Code can never be treated by any stretch of imagination to be an order under S. 15 of the Act. Under S. 15 of the Act as it stood at the relevant time in 1962-63 the protected tenant had himself to apply in writing to the Mamlatdar under the Tenancy Act that he wanted to surrender his tenancy rights. Thereafter, the entire gamut and procedure of S. 15(2) had to be followed and then only it can be said that the concerned tenant had surrendered tenancy rights. It is nobody's case that the petitioner's father had ever applied under S. 15(2) of the Act to surrender his tenancy rights nor had the concerned Mamlatdar, held any inquiry pursuant to such application and verified the surrender to be proper. The only order on which reliance is placed by all the lower authorities is Annexure 'D' which is really an order in mutation Proceedings and purely under the Land Revenue Code. Even the application Pursuant to which the order at Annexure 'D' was passed clearly shows that the respondent-landlady in 1969 had intimated to the Mamlatdar that she had already obtained possession of the land from 1962-63 and consequently. the name of the Petitioner's father as protected tenant was' required 'to be deleted from the 'other rights' column. It is. therefore, obvious that when the respondent obtained possession Of the land from the petitioner's father in 1962-63 and thereafter remained in possession thereof in personal cultivation, she did not obtain possession of the land from, the petitioner's father pursuant to any valid order of the Mamlatdar under S. 15(2) of the Tenancy Act. In fact, surrender proceedings had never taken place. ' Consequently, the only order on which the respondent relied, that is Annexure 'D' cannot be treated as an order under S. 15(2) of the Tenancy Act. It must, therefore, be held that the petitioner's father had never surrendered tenancy rights in favour of the respondent. But it appears that by some private arrangement outside the court, the petitioner's father seems to have handed over possession of the land for cultivation to the respondent in 1962-63 a few years after the deemed purchase of the land was postponed by an earlier order of the Mamlatdar. Such a private arrangement between the parties cannot have any legal efficacy. It is now well settled that any private arrangement between the landlord and tenant which does not go through the gamut and filtering process of S. 15 of the Tenancy Act viz. surrender Proceedings, has no legal efficacy and the tenancy of the tenant does not get terminated by such a private arrangement between the Parties. In the case' of Vallabhbhai Nathabhai v. Bai Jivi, 10 Gui LR 829: (AIR 1969 SC 1190), the Supreme Court, speaking through J. M. Shelat, J. has in terms observed as under while considering the Provisions of S. 15 of the Act and other relevant Provisions (at p. 1192 of AIR)
'Under Section 15(1), a tenant, as defined - by See. 2 (18) of the Act, can terminate the tenancy in respect of the land held by him as a tenant by surrendering his interest in favour of his landlord and as provided by sub-see. (2) On such surrender of the tenancy the landlord becomes entitled to retain the land so surrendered by the tenant in the same manner as when the tenancy is terminated under Sections 31 and 31A of the Act. The tenancy on such surrender comes to an end and thereupon the relation ship between them of a landlord and a tenant and the rights arising out of that relationship terminate. The Legislature, however, was aware of the possibility of landlords taking advantage over the tenants and therefore to safeguard the tenants against such a possibility it laid down through the proviso that a surrender by a tenant could only be valid and winding on him if it was in writing and was verified by the Mamlatdar. Before the Mamlatdar would verify such surrender it would be his duty to ascertain whether the surrender was voluntary was not and under Pressure or undue influence of the landlord. But once the surrender satisfies these two conditions it has the same effect as the termination of tenancy, the tenancy comes to an end and the landlord becomes entitled to retain the land of which possession is delivered to him by the tenant surrendering, his interest as a tenant therein. In cases, however, where the surrender has not satisfied the two conditions, even if it is voluntary it is no surrender and therefore there is no termination of relationship of a landlord and tenant. Consequently even if the tenant has voluntarily surrendered possession and the landlord has taken it over. since the tenancy, still continues the tenant obviously is entitled to retain Possession and therefore to its restoration. Though, therefore, See. 15 does not in so many words provide that in such a case. the tenant is entitled to restoration of possession. there being no valid surrender where the two conditions are' not satisfied the tenancy continues and the tenant can claim possession from the landlord as the tenant of the land in question, such claim being based on his right as such tenant to be in possession of such land and the landlord's disability to terminate the tenancy under the Provisions of the Act. It is true that Section 37 expressly provides for - restoration of possession to the tenant in the eventuality Provided therein while Section 15 does not so provide. But the right to restoration had to be provided for in Section 37 as there would be termination of tenancy which becomes revived and on revival thereof the tenant becomes entitled to restoration of possession. In a case under Section 15. however. if. the surrender is not valid it is no surrender at all and there is no question Of termination of tenancy. The tenant continues to be entitled to possession and therefore there is no question of the section having to provide for restoration of possession. There is, therefore, no force in the contention that in the case of an invalid surrender the tenant is not entitled to possession under the provisions of the, Act. 'He is in fact entitled to claim back Possession under Section 15 itself for under sub-section (2), the landlord becomes entitled to retain the land only If the surrender is in accordance with the provisions of Section 15'.
It is, therefore, clear that in the present. Annexure 'D' being not a valid order of surrender under S. 15(2) of the Act, is not legally efficacious. It has merely effected mutation entry OU the basis of the Past dealing regarding land in question between the existing tenant and the landlady. Such a private dealing of land between the parties has no legal efficacy. Consequently the order at Annexure 'D' cannot be treated to be a valid 'surrender of tenancy rights by the petitioner's father in favour of the respondent-landlady. Hence, the Tribunal was Patent1v in error when it held that because of the aforesaid mutation proceedings and the order 'of the Mamlatdar. it can be said that the petitioner's father had voluntarily surrendered his tenancy rights in favour of the respondent. Once that finding is found patently erroneous in law, it would be Obvious that the provisions of Section 32(1B) would squarely apply to the facts of the Present case. As already stated above, the facts which are enumerated in details earlier are not in dispute at all. The petitioner's 'father who was a Protected tenant seems to have been won over by the respondent-landlady and he seems to have walked out of the land somewhere in 1962-63 and seems to have handed over actual Possession of the land though without any valid order of the Mamlatdar in surrender Proceedings. Thereafter. the possession of the land has continued with the respondent and she is in Personal cultivation of the land. The petitioner's father expired somewhere in 1972. Now. the petitioner as the heir and legal representative invokes the provisions of Section 32(1B) for his assistance. The aforesaid S. 32(1-B) provides for the following contingencies:-
(I) The tenant must be in Possession on the appointed day.
(ii) He must have been dispossessed of such land or Dart of it before the specified date otherwise than in the . manner Provided in Section 29 or any other Provision of the Act.
(iii) He must not be in possession of such land or any part thereof and such land or Part there is in the possession of the landlord or his successor-in-interest on the said date.
(iv) Such land or Dart thereof must not be put to a non-agricultural use on or before the said date '. If the aforesaid conditions are satisfied, the Mamlatdar either suo motu or on the application of the concerned tenant has to hold an inquiry and to direct the said land to be restored to the tenant. In the present case. in the suo motu inquiry before the Mamlatdar it has been clearly brought out that all the aforesaid conditions for applicability of Section 32(1B) have been complied with. The petitioner's father who was the Protected tenant was in possession of the land on the appointed day that is 15-6-1955. He has been dispossessed of the land after that time but before the specified date that is before 3-3-1973 by the respondent. He seems. to have, in fact. voluntarily walked out of the land by private dealing with the landlady without inviting any Order either under Section 29 or Section 15 of the. Tenancy Am The only order Which the respondent can rely upon is the mutation proceedings order at Annexure 'D' which as I have demonstrated above. is, of no. avail to the respondent. It is cortain1y not an order under Section 29 or' Section 15 of, the Tenancy Act in favor of the respondent. Who has made it, very clear in her application at Annexure 'D' below which the order of the Mamlatdar has been Passed that she had already obtained possession from the tenant from 1962-63 and she wanted the Mamlatdar to correct the record' of rights by deleting the name of the , petitioner' s father. Thus. The order at Annexure 'D' is neither under Section 29 nor Section 15 or under, any other Provisions of the Tenancy Act. It is also clearly established on the record of the case in inquiry before the Mamlatdar in the Present case, that the respondent from 1962-63 all throughout has been in actual cultivation of the land in question. It has not been to any non-agricultural use. The Mamlatdar has noted in his order that the landlady in her deposition before him clearly show that the land in question is in heretical cultivation and the record of rights shows that all throughout the mode of cultivation was one from 1962-63 onwards. Thus, it is the indent's own, case that from the time the petitioner's father handed over the possession of the land to her. She is personally 'cultivating the land. Thus all basic conditions required for the applicability of, Section 32(1-B) have been fully case. The Tribunal failed to give relief to the petitioner under Section 32(1-B) only on. the ground that - the Petitioner's father had surrendered his tenancy rights to the respondent pursuant to the order, of the Mamlatdar being, order No. A. L. T. Vashi 101. dated 23-6-1969. once that order is shown to be legally ineffective. nothing further remains between the Petitioner and the Proper relief which can be given to him under Section 32(1-B) as all basic requirements have been fully established in the suo motu inquiry which the Mamlatdar held pursuant to his notice dated 10-12 -1974. The Tribunal was. therefore, patently in error when it refused to exercise its jurisdiction and failed to give relief to the petitioner under Section 32(1-B) on the wrong assumption that. the petitioner's father had already surrendered his. tenancy rights years back in favour of the respondent land, lady. The second contention of Mr. Patel. therefore, has got to be accepted.
21. The provision of Section 32(1-B), came up for consideration of this court in the case of Bhailalbhai Govindbhai v. Bai Nanduba, 18. Gui LR 901: (AIR 1977 Gui 152). M. P. Thakkar, J. in terms held (At P. 153 of AIR)
'On an analysis of See. 32 (1-B) of the Bombay Tenancy Act (as amended by Act V of 1973) it is evident that all that the tenant has to establish in order to secure Possession of the land in question is to establish (1) that he was I in possession on the appointed day; (2) that he was not in possession on the specified day (March 3. 1973) and (3) that he was dispossessed before the specified date (March 3. 1973) otherwise than in the manner provided in Sec, 29 or any other provision of the Tenancy Act.'
It has been further held:-
'Even assuming that the tenant was persuaded to surrender his tenancy inasmuch as it is an admitted position that surrender is not in accordance with the provisions of the Tenancy Act and that Possession has not been obtained either under Section 29 or any other Provisions of the Tenancy Act. landlord cannot succeed.'
Thakkar, J. further observed in that connection:-
The Tenancy Act being a benevolent piece of legislation designed in order to protect indent and Literate tenants, the, expression 'dispossession' must amply in any case where a ten2nt who was previously in possession is not. in possession any more. it is not necessary to equate 'dispossession' with 'violent . dispossession.' 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, the ferocity would follow that the tenant has been dispossessed. 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 tenanted court either under Section 29 or under some other Provision of the Tenancy Act.' Thus, all the aforesaid legal requirements for application of Section 32(1-B) have been, on facts. found to be well established on the record of this case.
22. It is true the petitioner as an heir of his father seeks assistance of the provisions of S. 32(1-B). Even the question whether an heir of a tenant can seek benefit to Section 32(1-B) is also no longer res integra. A Division Bench of this court in Motibhai Panchabhai Khristi v. Maganbhaj Desaibhai Patel. (1981) 22 Gui LR 107. held that the heirs of the deceased tenant are entitled to make an application under Section 32(1-B) of the Act. Speaking for the Division Bench, in the aforesaid decision, it was observed by me as under:-
'Section 40 of the Bombay Tenancy Act clearly mentions that once a tenant dies, the landlord is deemed to have continued the tenancy on the same terms and conditions to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. Thus. Statutory tenanted of the deceased tenant ensures for the benefits of his willing heirs. Section 40 operates on its own and automatically. Consequently the tenancy rights of the deceased tenant by operation of Section 40 are available to his willing heirs and they step in the shoes of the deceased tenant. Once Section 40(1) is attracted on the death of a tenant and once his tenancy right gets vested in his willing, heirs, there is no reason why guru-willing heirs cannot take the benefit of Section 32(1-B) and cannot an play under the said provision and fixation of purchase Price. Consequently, even though the deceased tenant who is covered by See, 32 (1-B) move have died before he himself could make an application under Section 32(1-B). there appears no rhyme or reason to contemplate a situation where his heirs who automatically step in his shoes by the statutory operation of Section 40(1), cannot maintain an application for restoration of possession of the land from the landlord as they are statutorily clothed with all rights of the deceased tenant as Deer the combined operation of See. 32 (17B) and See. 40 (1) of the Act, Hence, the heirs of the deceased tenant. are entitled to make an application under Section 32(1-B) and to carry it its logical conclusion.' In the light of the aforesaid settled legal position and in the background of Proved and admitted facts on the record of this case the only conclusion possible is that the petitioner has fully established his case for, restoration of possession of the land in question and for fixation of purchase price in his favour per the provisions of S. 32(1-B) of the Tenancy Act. The Mamlatdar held necessary. inquiry by initiating suo motu proceedings pursuant to his notice dated. 10-12-1974. Both the sides were heard by him on relevant points. The evidence was also recorded. Under these circumstances. it must be held that all the relevant requirements for application of Section 32(1-B) have been complied with. Consequently, the petitioner is entitled to get necessary relief under the provisions of Section 32(1-B). it must be held that the petitioner is entitled to be declared as a deemed Purchaser of the land in question pursuant to the aforesaid provisions and as Ids father, without - following the relevant requirement of the Tenancy Act. Had handed over -possession of the land to the landlady in 1962-63 which event had squarely fallen within the two terminal dates of the appointed day and the specified date as laid down in See. 32 (I-B). the petitioner is also entitled to get restoration of the said land from the respondent-landlady. , Accordingly. The Present Petition is allowed. Rule issued thereon is made absolute. The impugned orders of the Revenue Tribunal at Annexure C and E as well as the appellate order, of the Assistant Collector at Annexure 'B' and the original order of the Mamlatar at Annexure 'A' are quashed and set aside. The petitioner's request for being restored the possession of the land in question under See. 32 R-B) is granted. The respondent is directed to hand over vacant and Peaceful possession of the land in question being survey number 203, admeasuring 1 acre 8 gunthas situated in the sim. of village Thalota in Visnagar taluka to the petitioner. The petitioner is also declared a deemed purchaser of the land, in auestion under Sections 32 to 32-R of the Act from the date on which the land is restored to him. On such restoration, the Mamlatdar is directed to fix the purchase price of the land in question in favour of the Petitioner in accordance with law and after following legal requirements of See. 32 (1-B) especially the proviso thereto under which the petitioner is to be called upon to give requisite undertaking in writing to the Mamlatdar as per the said provision. The, Mamlatdar, Visnagar is directed to proceed in accordance with law under Section 32(1-B) and to obtain necessary undertaking from the petitioner. He is also directed to see that possession of the land in' Question is restored to the petitioner forthwith and thereafter to fix the purchase price of the land payable by the petitioner to the respondent after following proper procedure under Sections 32 to 32-R and after holding proper inquiry under Section 32-G for fixation of purchase price. Rule made absolute accordingly with no order as 'to costs.
23. Rule made absolute.