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Adambhai Hasanbhai and ors. Vs. Adam Malka and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No 615 of 1962
Judge
Reported inAIR1968Guj64; (1967)GLR577
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 29, 32A, 34, 34(1) and 34(5); Gujarat Agricultural Lands Ceiling Act, 1961 - Sections 6; Bombay General Clauses Act, 1904 - Sections 7; Constitution of India - Article 226
AppellantAdambhai Hasanbhai and ors.
RespondentAdam Malka and anr.
Appellant Advocate M.M. Patel, Adv.
Respondent Advocate J.J. Shah, Adv.
Excerpt:
tenancy - ceiling limit - sections 32a and 34 of bombay tenancy and agricultural lands act, 1948 - according to sections 32a and 34 tenant had no right to that part of demised land which was in possession of tenant in excess of ceiling area - landlord would have right to possession of that part of demised land which was excess of ceiling area - incase landlord claims unlawfully possessed area he has to show that he does not possess more than ceiling area - landlord will not be entitled to possession of land unlawfully possessed by his tenant if he possess more than ceiling area. - - on 5th august 1957, the tenancy mahalkari dismissed the suit, holding that the landlord had failed to prove that he required the demised premises for a reasonable and bona fide need. those sections are.....miabhoy, c.j.(1) this is a writ petition under articles 226 and 227 of the constitution of india. petitioners are the legal representatives of one hasabhai adambhai. who will be called the landlord hereafter. respondent no. 1 is one adam malka, who will be called the tenant in the rest of this judgment. respondent no. 2 is the gujarat revenue tribunal. whose order dated 16th april 1962 is being challenged in this petition. the landlord was the owner of survey no. 2038, situated in dhandhuka, district ahmedabad, from out of which, we are concerned with an area measuring twenty acres only in this petition. respondent no. 1 (hereafter called respondent simpliciter) was the tenant of survey no 2038. the landlord terminated the tenancy by a notice, dated 15th november 1956, on the ground that.....
Judgment:

Miabhoy, C.J.

(1) This is a writ petition under Articles 226 and 227 of the Constitution of India. Petitioners are the legal representatives of one Hasabhai Adambhai. Who will be called the landlord hereafter. Respondent No. 1 is one Adam Malka, who will be called the tenant in the rest of this judgment. Respondent No. 2 is the Gujarat revenue Tribunal. Whose order dated 16th April 1962 is being challenged in this petition. The landlord was the owner of survey No. 2038, situated in Dhandhuka, district Ahmedabad, from out of which, we are concerned with an area measuring twenty acres only in this petition. Respondent No. 1 (hereafter called respondent simpliciter) was the tenant of survey No 2038. The landlord terminated the tenancy by a notice, dated 15th November 1956, on the ground that he required the demised premises for his reasonable and bona fide requirements. The landlord, thereafter, filed, on 198th March 1956, a tenancy suit bearing No. 3/1957 for possession of the demised premises on the ground that he required the premises reasonably and bona fide for his personal need and also on the ground that respondent had, in his possession, an area more than the ceiling area as then prescribed by the law. It is common ground that the law permitted a landholder to possess only forty-eight acres of Jirayat land. It is also common ground that respondent possessed other lands also. The total area which was in possession of the tenant was sixty-four acres and thirty-four gunthas of Jirayat land, including the demised premises. Thus, it is common ground that the tenant was, at the relevant time, in the possession of an excess area of sixteen acres and thirty-four gunthas. This litigation has had a chequered history and, in order to understand the final point on which the petition is to be disposed of, it is necessary to mention briefly the history of the orders passed in this litigation. On 5th August 1957, the Tenancy Mahalkari dismissed the suit, holding that the landlord had failed to prove that he required the demised premises for a reasonable and bona fide need. But, he did not consider the question of ceiling area at all. The landlord preferred on appeal, No. 52/57-58, which was disposed of by the Assistant Collector, Dholka, by his order dated 9th December 1957. The appeal was dismissed on the ground that the landlord had not established a reasonable and bona fide need and that the question of the possession of the excess area was irrelevant. The landlord, thereupon, filed a revision application, bearing No. 88/58, to the then Bombay revenue Tribunal. That Tribunal, by its order dated 25th March 1958, confirmed the finding of the tenancy authorities that the landlord did not require the demised premises for a did not require the demised premises for a reasonable and bona fide need, but, remanded the proceeding to the Mahalkari to decide the proceeding to the Mahalkari to decide two issues which arose from the pleadings. The first issue was, whether, the tenant held the land in excess of ceiling area. The landlord was entitled to the possession of the excess area. The landlord was aggrieved by this order of the Bombay Revenue Tribunal, and filed a writ petition to the then Bombay High Court. This writ petition was decided by that High Court on 31st of July 1958, and has since been reported in (1959) 61 Bom LR 415. The petition was dismissed. However, the Bombay High Court upheld the finding of the Bombay Revenue Tribunal that, section 34, sub-section (1), of the Bombay Tenancy and Agricultural Lands Act. 1948 (hereafter called the Tenancy Act) under which the landlord claimed possession of the excess area, conferred an independent of the excess acres, conferred an independent right which was not dependent upon the right arising under section 311 of the Tenancy Act. The Bombay High Court, therefore, upheld the order of remand passed by the Bombay Revenue Tribunal. The matter then went back to the Tenancy Aval Karkun, who dismissed the application of the landlord by his order dated 26th June 1958. The landlord preferred an appeal, bearing No. 78/59, which was disposed of by the District Deputy Collector, That officer, by his order dated 9th March 1959, set aside the order of the Tenancy Aval Karkun and remanded the matter to that officer for disposal according to law. On the second remand, the Tenancy Aval Karkun found by his order dated 19th October 1959, that the tenant was holding excess area of land and that, he was unlawfully holding it. But, he dismissed it on the ground that it was not possible to demarcate the excess area which could be done only by undergoing the procedure laid down in section 32G of the Tenancy Act. From this order, the landlord preferred an appeal, bearing No. 112/59-60, which was disposed of by the District Deputy Collector by his order dated 11th February 1961. However, before this date and after the completion of the arguments. The landlord died on 27th June 1960. The District Deputy Collector allowed the aforesaid appeal and passed an order under section 34, sub-section (1) read with section 29 of the Tenancy Act, for possession of the excess area measuring sixteen acres and thirty-four gunthas. The tenant, thereupon filed a revision application, on 27th April 1961, joining the hires of the landlord as parties to the revision application, to the Gujarat Revenue Tribunal, (hereafter called the Tribunal simpliciter). The Tribunal decided the matter by its impugned order dated 16th April 1962. The Tribunal agreed with al the findings recorded by the District Deputy Collector, but, reversed the order of that officer on a new ground. During the pendency of the revision application before the Tribunal, the Gujarat Agricultural Lands Ceiling Act, 1961 (hereafter called the Ceiling Act), which was passed on 15th June 1961. That Act fixed the ceiling area in respect of Jirayat land in the region, from which this case arises, as ninety-six acres, thereby doubling the ceiling area which was fixed under the Tenancy Act at forty-eight acres, so far as that region was concerned. Therefor, the argument which was advanced on behalf of the tenant was that, whatever might have been the position under the old law, the tenant was entitled to hold, under the Ceiling Act, an area admeasuring ninety-six acres of Jirayat land. On that reasoning, the tenant contended before the Tribunal that, on the date on which the Tribunal was being called upon to answer the question as to whether the tenant was or was not in possession of an excess area, the answer should be that the tenant was not in possession of an excess area, the answer should be that the tenant was not in such possession. That raised the question as to whether the Ceiling Act had or had not retrospective action. That question was decided by the Tribunal in favour of the tenant. The Tribunal held that section of the Ceiling Act gave the Ceiling Act retrospective action and, therefore, allowed the revision petition of the tenant and set aside the order of the District Deputy Collector and dismissed the original application of the landlord made on 18th March 1957.

(2) Petitioners contend that, the decision of the Tribunal that the Ceiling Act has retrospective operation is an error of law apparent in the face of the record and deserves to be quashed by this Court.

(3) Before we consider the aforesaid question, it is necessary to mention some of the sections of the Tenancy Act and the Ceiling Act. It is necessary to do so, because It is in the context of those sections that the question as to whether the Ceiling Act has retrospective action, can be decided. By the Bombay Amending Act XIII of 1956, which came into operation on 1st August 1956, which came into operation on 1st August 1956, a series of important and far-reaching amendments were introduced into the Tenancy Act. The most important and revolutionary amendment, which was introduced in the Tenancy Act, was section 32, by which a majority of the tenants in the Bombay State were deemed to have purchased the demised lands on the first day of April 1957, called the tiller's day, and some others on certain other dates called the postponed dates, in the tenancy Act. The right given to the tenants under section 32, was, however, subject to certain conditions mentioned in section 32A. The condition with which we are concerned in the present petition is that, in case a tenant did not hold any land as owner, but, held land as tenant in excess of the ceiling area, then, he was deemed to have purchased, on the tillers' or the postponed date, land only upto the ceiling area. The ceiling area was fixed under section 5 of the Tenancy Act, which came to be substituted for the old section 5 of the Bombay Amending Act XIII of 1956. The section fixed 'for the purposes of this Act' the ceiling area to be forty-eight acres of Jirayat land. The tenancy Act, however, preserved the right of the landlord to terminate the tenancy under some of the sections of that Act, including section 31, under which, as already stated. The landlord purported to take action by filing the application on 5th March 1957. This right of the landlord to recover possession was also subject to some conditions mentioned in S. 31A, and the condition which may be mentioned for the disposal of this petition is that the landlord does not possess an area more than the ceiling area, or, if he possesses land more than that area, then, he will be entitled to possession of such of the demised land as will complete the ceiling area, Section 34, sub-section (1), enacted that, it was not lawful, with effect from the appointed day, which meant 15th June 1955, for any person to hold, whether as owner or tenant, or partly as owner and partly as tenant, land in excess of the ceiling area. The landlord's case in the present litigation was based upon that sub-section (1) of section 34, under which if the tenant was in possession of more than ceiling area, his possession of excessive land would be unlawful. At the time when the application for possession was made under section 29 of the Tenancy Act by the landlord, sub-section (5) of section 34 was not on the statute book. It was introduced for the first time by the Amending Bombay Act. XXXVIII of 1957 which came into operation on 28th September 1957. This sub-section (5) was, therefore, not in operation on the date on which the Tenancy Mahalokari disposed of the petition first on 5th August when the Assistant Collector passed his order in the first appeal on 9th December 1957.

(4) As we have already state, the Ceiling Act was passed on 15 the June 1961, but came into operation on Ist September 1951 Section 5 of the Ceiling Act fixed the ceiling areas with reference to different regions and as we have already stated, for the region from which this case comes, the ceiling areas was fixed as 96 acres of Jirayat land. S. 6 of the which we have to consider, prohibits any person from holding any land in excess of the ceiling area. We shall revert to this section just in a moment. Section 54 of the appointed day, that is, Ist September 1951 the enactment's specified in Schedule III shall be amended to the extend mentioned in the fourth column thereof. Schedule III states in the fourth column, inter alia, that section 34 and 35 of the Tenancy Act shall dispute that section 34 stood repealed with effect from 1st September 1961. One important fact which needs to be noticed at the stage is that, though sections 34 and 35 (with the latter of which admittedly we are not concerned) have been repealed, sections 5, 31A and 32A of the Tenancy Act do not stand repealed by the Ceiling Act. Those sections are still good law as they were beefier.

(5) Now, the view which has been taken by the Tribunal is based upon the provision contained in section 6. In the view of the Tribunal, that section gives retrospective operation to the ceiling Act in regard to the extent of the area which a tenant is entitled to hold after the passing of the ceiling Act and, as a result of which, the tenant in the present case is entitled to retain the area of sixteen acres and thirty-four gunthas which was found to be the excessive area under the old law.

(6) Before we reproduce section 6, sub-section (1), on which reliance is placed, we may consider the line of reasoning which was adopted by Mr. Shah in support of the finding recorded by the Tribunal. Mr. Shah contends that, though section 34 does not say in terms that any part of the Tenancy Act was repealed, a conjoint reading of that section and the relevant part of Schedule III which deals with section 34, is that, section 34 of the Tenancy Act has been repealed. Now, there is no doubt whats over that the Ceiling Act does not contain any saving clause which would govern the repeal of any enactment under the same. Therefore, Mr. Shah concedes that, one has got to turn to section 7 of the Bombay General Clauses Act, 1904, It is not disputed that, under that section, when any Bombay enactment repeals any enactment, then, 'unless a different intention appears' the repeal shall not effect certain things mentioned in clauses (a) to (e). The word 'enactment' mentioned in section 7 has been defined in clause (17) of section 3 of the Bombay General Clauses Act as including any provision contained in any enactment. Therefore, there is no dispute, as already stated, that section 7 should govern the repealing part of the Ceiling Act. Now, the repealing part of the ceiling Act. Now, only of the things which, according to section 7, shall not take place, is that a repeal shall not affect any vested right or an incurred liability under the repealed part of the Tenancy Act. We are unable to agree with this submission. In our judgment, a conjoint reading of section 32A and S. 34 of the Tenancy Act must necessarily lead to the conclusion that the tenant had no right to that part of the demised land which was in possession of the tenant in excess of the ceiling area. The landlord would have a right to possession of that part of the demised land which was in excess of the ceiling area. Mr. Shah's contention is that this view is not tenable. The contention is based on the nonexistence of sub-section (5) of section 34 at the relevant time. Mr. Shah's contention is that the mere fact that a tenant is in possession of an excess area is demarcated and separated, it is not possible to designate, from out of several lands or areas in possession of a tenant, which of those areas is unlawfully possessed by him. Mr. Shah is right in making this contention. But, in our judgment, that is a matter which does not depend upon the as certainment of any such excess area under the provisions of sub-section (5) of section 34 of the Tenancy Act. That sub-section (5) reads as follows:-

'(5).- Where the possession by a tenant of any land leased to him becomes unlawful under sub-section (1) and the landlord fails to obtain possession under section 29, the Mamlatdar may suo motu or on the application of any person interested in such land issue a notice in the prescribed form to the tenant for showing cause why his possession of the land should not be declared unlawful, and after holding a formal inquiry decide the issue. Where the possession is held unlawful, the land shall be at the disposal of the Collector under section 32P'.

Now, in our judgment, this sub-section has no application to the facts of the present case. In order that that sub-section may apply, two conditions are necessary to be satisfied, and the second is relevant to the facts of the present case. That second condition is that 'the landlord fails to obtain possession under section 29'. It is only when the two conditions are satisfied that the Mamlatdar will have the power of proceeding under sub-section (5). The procedure prescribed by sub-section (5) to be followed by the Mamlatdar has been enacted with view to make the land, unlawfully possessed view to make the land, unlawfully possessed by a tenant, a part of the common pool, so that, the same may be available to the persons mentioned in section 32P. It is true that, under section 32P, the landlord is one of the persons to whom the land has got to be surrendered in a proceeding there under. But, that happens only when section 32P did not apply to a case of unlawful possession under section 34, subsection (1) that sub-section (5) was enacted. By that section, by a fiction, section 32P was applied in order to enable the Mamlatdar to proceed to dispose of the unlawfully possessed land amongst the persons mentioned in section 32P. But, having regard to the fact that sub-section (5) itself states that it is to come into operation when the landlord fails to obtain possession under section 29, sub-section (5) does not come into operation. Therefore, If sub-section (5) does not apply, and if, by some process, the revenue authorities are able to designate that a particular area is unlawfully possessed by the tenant under sub-section (1) of section 34 is that the tenancy rights of the tenants are abolished, thereby accelerating the reversion of the landlord, there is no reason to believe that there is anything in the tenancy Act which deprives the landlord of his reversionary interest simply because of the possession of certain area by the tenant becomes unlawful. It is true that, in case the landlord claims the unlawfully possessed area, the landlord may have to show that he, in his turn, does not possess more than the ceiling area. If he does not do so, then, in that case, he will not be entitled to possession of land unlawfully possessed by his tenant. That raises the question as to what is the procedure under the tenancy Act, by which, the landlord can take possession of the land rendered unlawfull by sub-section (1) of section 34. According to Mr. Patel, the landlord has the right of proceeding to recover possession of such land under section 29 of the Tenancy Act, Mr. Shah onsets this position. In the submission of Mr. Shah, section 29 applies only to a case where a landlord intends to take possession of land by virtue of the provisions contained in section 31 of the Tenancy Act. We are unable to agree with this submission. Sub-section (2) of section 29 of the Tenancy Act is the relevant sub-section. That section enacts that, 'no landlord shall obtain possession of any land .............. held by a tenant except under an order of the Mamlatdar.' And further enacts that, for obtaining such order, he shall make an application in the prescribed form within the period prescribed under that sub-section. In our judgment, there cannot be any doubt that, this is a general section which requires every landlord, in whatever, way his right to obtain possession of the demised land accrues, to make an application before the Mamlatdar. If there is any doubt left in one's mind as regards this construction, the doubt must vanish by reason of the proviso to sub-section (3) of section 29. That section refers to applications, not only under section 31, but, also under certain other sections of the tenancy Act. Therefore, in our judgment, Mr. Shah is not right in contending that, before sub-section (5) of section 34 of the Tenancy Act was introduced, there was no remedy under the Tenancy Act prescribed for the landlord to take possession of the land, the possession of which was rendered unlawful, and that, the only way in which the landlord can now take possession after the aforesaid amendment is under sub-section (5) of section 34. Now, on the facts of the present case, in our judgment, there is not the slightest doubt that, not only the landlord had acquired a vested right to an area unlawfully possessed by the tenant, but, the right was crystallized as and when the Deputy Collector, in a legal proceeding, by his order dated 11th February 1961, passed an order holding that the tenant was in possession of an excess area of sixteen acres and thirty-four gunthas and that, the landlord was entitled to take possession of that excess area. By that order, the tenant was rendered liable to deliver possession of the unlawfully possessed area to his landlord. Section 7 of the Bombay General Clauses Act not merely protects such a vested right, but, protects any legal proceeding or remedy in respect of such vested right or incurred liability. That section in terms says that, in the case of a pursuit of such legal proceeding or remedy, the proceeding or the remedy shall be continued 'as if the repealing Act had not been passed.' Therefore, when the matter was taken by the tenant to the Tribunal buy his revision petition dated 27th April 1961, the legal position was that the landlord had acquired a vested right to possession of the land and the tenant had incurred a liability to deliver possession of the excess area. In our judgment, therefore, having regard to the provisions of section 7 of the Bombay general Clauses Act, the Tribunal was bound to decide the rights of the parties on the basis as if the repealing Act had not been passed. Apart from section 7 in our judgment, there is another aspect of the matter, which also must lead to the same conclusion. The grounds on which the Tribunal can interfere in revision are mentioned in clauses (a), (b) and (c) of section 76 of the tenancy Act. The grounds are (1) That the order of the Collector is contrary to law the order of the Collector is contrary to law, (2) That the Collector is contrary to law, some material issue of law, or (3) that there was a substantial defect in following the procedure provided by the Act or that there had been failure to take evidence or an error in appreciating important evidence. Therefore, the Tribunal has got jurisdiction to test the correctness or otherwise of the order against which the revision petition in grounds and, from section 76, it is quite clear that, in each case, the question would be passed the order, his order suffered from any of the three vices mentioned in section 76. Now, having regard to the fact that the ceiling Act was not in existence at the time when the order dated 11th February 1961 was passed by the District Deputy Collector, it cannot be said with reasonableness that order suffered from all or any of the aforesaid defects. Therefore, in our judgment, unless, as section 7 of the Bombay General clauses Act says, a different intention appears in the Ceiling Act, it cannot be said that the order which was passed by the District Deputy Collector was bad.

(7) That leads to the consideration of section 6 of the Ceiling Act. Sub-section (1) of that section reads as follows:

'6. (1) Notwithstanding anything contained in any law for the time being in force or in any agreement usage or decree or order of a Court, with effect from the appointed day no person shall, subject to the provisions of sub-sections (2) and (3) be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.'

Now, this sub-section is in two parts. The first part is the non obstinate clause and the second is the main or the operative part. The main or the operative part says that 'with effect from the appointed day', that is, from 1st September 1961, 'no person shall, subject to the provisions of sub-sections (2) and (3), be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.' In our judgment, the operative portion is a negative enactment. It prohibits any person from holding land more than the ceiling area from 1st September 1961. It is a disabling enactment. It is not intended to enable any person to get from somewhere land which would complete the ceiling area, if he does not happen to possess that amount of land. The idea behind the aforesaid enactment is only to prevent a person from holding more than the ceiling area and not to convert any right of any person to have land which would complete the ceiling area in case there is a deficiency. The non obstinate clause can operate only in the context of the main part of the sub-section. It is true that, the non obstinate clause makes the main part operative notwithstanding anything contained in any decree or order of a Court. Even assuming that, that non obstinate clause applies to the order of the Deputy Collector, with which we are concerned, it is quite clear that the order of the Deputy Collector will not become ineffective unless the main part confers a right upon the tenant to hold land more than the land which actually he holds on the appointed day. Now, this reading of sub-section (1) is confirmed by a reference to not only the object of the Ceiling Act, but, some other provisions contained in the Ceiling Act itself. It is further confirmed by the fact that some of the sections, which we have already mentioned, have not been repealed by the tenancy Act. In the first instance, sub-section (6) says that the prohibition to hold more than the excess area is to be effective from the appointed day. This clearly means that the section in not intended to be given a retrospective effect so as to operate from a date earlier than the appointed day. The object of the enactment is to be found in the title and the preamble. The title of the enactment is that it is 'An Act to fix a ceiling on holding agricultural land and to provide for the acquisition and disposal of surplus agricultural lands.:' The first part of the preamble is a recital to the effect that the Tenancy Act imposes a restriction upon holding agricultural land in excess of certain limits. The second part of the preamble then states 'Whereas it is expedient in the public interest to make a uniform provision for the whole of the State of Gujarat in respect of restrictions upon holding agricultural land in excess of certain limits and it is also expedient for so securing the distribution of agricultural lands for the allotment thereof to persons who are in need of land for agricultural ...... and to provide for other consequential and incidental matters' Therefore, the Ceiling Act is a general enactment. It is an enactment which has been enacted only for the purpose of fixing the ceiling area. Its object is not directly to interfere with the rights and liabilities of landlords and tenants. There is nothing in the preamble or in any other part of the Act which would justify the conclusion that the Ceiling Act was enacted with a view to compel a landlord to part with land which he was otherwise entitled to from his tenant, so as to complete for the tenant the ceiling area. On the contrary, sub-section (2) of section 19, which deals with the restoration of surplus land by the tenant to the landlord, says that in the contingencies mentioned in that sub-section 'the landlord shall be entitled to the restoration of possession of so much of such land as he would have been entitled to in accordance with the provisions of the relevant tenancy law had the tenancy, been terminated on the aforesaid ground. We have already mentioned that sections 5, 31A and 32A of the Tenancy Act have not been repealed by the Ceiling Act and that, those sections still are good law governing the rights and liabilities of landlords earning the rights and liabilities of landlords and tenants. Section 31A of the Tenancy Act says that, a landlord shall not be entitled to recover from his tenant possession of land more than the ceiling area. Section 32A says that tenant shall not be deemed to have purchased land more than the ceiling area. References to ceiling area in these two sections is undoubtedly a reference to the area which is prescribed by section 5 of the Tenancy Act. Therefore, when either a landlord or a tenant claims his rights under the Tenancy Act, the extent of the area of which he is entitled to regain or retain possession, would be governed by the provisions of the Tenancy Act and not by the Ceiling Act. The Tenancy Act is a special Act which deals with the relationships of landlord and tenant and the Ceiling Act is a general Act which governs the relations of all holders of land. In addition to this, there is one more ground, on the basis of which one can say that section 6 is not applicable to a cased of the present type. Section 6 does state that no person shall be entitled to hold land more than the ceiling area. The expression 'to hold land' has been defined in clause (15) of section 2 of the Ceiling Act as meaning 'to be lawfully in actual possessions of land, it cannot be said that he was lawfully in possession of land on the appointed day. Under the circumstances, a perusal of section 6 does not leave any doubt that, it does not give a retrospective operation to the provisions contained in the Ceiling Act in regard to the ceiling area. The error which has been committed by the Tribunal in construing the section as giving retrospective operation is that it has construed section 6 as enabling section, whereas., on the face of the section, that section is only a disabling section and is not intended in any way to interfere with the rights already accrued to a landlord under the old provision. Moreover, that construction ignores the fact that section 5 and 32A of the Tenancy Act are not repealed by the Ceiling Act and are still good law. In our judgment, the construction which has appealed to the Tribunal is, on the face of it, erroneous and requires to be corrected by this Court.

(8) In that view of the matter, the present petition would deserve to be allowed. However, Mr. Shah tries to support the judgment of the Tribunal on another ground Mr. Shah contends that, the application which was filed by the landlord on 18th March 1957 was an application made by him under sub-section (5) of section 34 of the Tenancy Act and that, sub-section (5) having been repealed, the landlord is not entitled to the benefit thereof. We have already considered this aspect of the matter and, for the reasons which we have already given, we are not in agreement with the submission of Mr. Shah further contends that, the order of the Deputy Collector is obviously wrong for another reason and, that is that, the order was passed without undergoing the procedure laid down in sub-section (5). According to the submission of Mr. Shah, sub-section (5) of section 34 applies because in the judgment delivered by the Bombay High Court in the case reported in (1959) 61 Bom LR 415 it has been stated that the application of the landlord was under sub-section (5) of section 34. Therefore, the contention of Mr. Shah is that none of the two conditions mentioned in sub-section (5) was satisfied by the present case, and it was the duty of the Mamlatdar to undergo the procedure prescribed in the latter part of sub-section (5). Therefore, Mr. Shah's contention is that the order of the Deputy Collector is bad, because, a notice has not been issued a required by sub-section (5) of section 34 and the provisions of section 32P of the Tenancy Act have not been considered and applied. Now, there are several objections to this line of reasoning adopted by Mr. Shah. In the first instance, it is to be noted that no affidavit in reply has been filed by the tenant. Therefore, there has been no indication whatsoever in the present petition that respondent was going to support the order of the Tribunal on the above ground. If we were to permit Mr. Shah to raise this new ground at this late stage, it is quit e clear that petitioners would be taken by surprise. The second objection is that, the aforesaid ground was not taken any where either before the Tribunal in the aforesaid shape or before the District Deputy Collector. Mr. Shah contends very strenuously that he had raised this particular point before the Tribunal, and the same has been discussed by the Tribunal on page 18 of the paper book in the paragraph beginning with 'Next it was contended by Mr. Shah that even if the tenant is found to be in possession of land in excess of the ceiling area there was no way to find out which particular land was in excess of the ceiling area and of which particular land the tenant should be dispossessed.' We have read and re-read the aforesaid paragraph with Mr. Shah more than once and, with respect, we are unable to agree with him point in hand. The point which was raised before the Tribunal and which was negatived was that the tenant had the right to choose, probably under section 32C, as to which particular land was to be selected by him in case he was in possession of an excess area, and that there was no machinery in the Tenancy Act under which that particular area, which could be designated as unlawful, could be demarcated. Now, it is obvious that this is a point entirely different from the one which Mr. Shah raises before us. If we were to permit this point to be raised for the first time, as already indicated in another connection, this would be springing a surprise on the other side. Apart from this, as we have already indicated, the above point, namely that a notices should be issued under sub-section (5) of section 34 before passing an order for possession of the land alleged to be unlawfully held by the tenant, was not taken by the tenant at the earlier stages of this litigation. But, apart from the above technical consideration, we have not the slightest doubt that, on merits, Mr. Shah's contention has no substance. In the first instance, in our judgment, it is not correct to say that the landlord had made the original application under sub-section (5) of S. 34 of the Tenancy Act. That sub-section was not in existence at the time when the application dated 18th March 1957 was made. As we have already mentioned, that sub-section came to be introduced on 28th September 1957. Apart form this, there is not the slightest doubt that sub-section (5) of section 34 is not the section under which landlord, even after the introduction of that sub-section, has to start proceedings for recovering land unlawfully held by his tenant. Moreover, we are not satisfied from the record in this case that the application for possession of land, on the ground that the land possessed by the tenant was unlawful, was not made under section 29. The only argument which Mr. Shah has to advance on this subject is a statement to that effect by the Division Bench aforesaid . That statement is undoubtedly entitled to weight. But, having regard to the important fact that the application, dated 18th March 1957, came to be made at the time when sub-section (5) was not in existence, that the only application which the landlord can make for possession is under section 29, an objection to the contrary having been rejected by us, that the District Deputy Collector has in terms passed an order under section 29 read with section 34 (1) of the Tenancy Act and that order passed under section 29 was not challenged before the Gujarat Revenue Tribunal on the ground that it could not be so passed, it is impossible for us to agree merely on the aforesaid statement that the application was under sub-section 29 of the Tenancy Act. We asked Mr. Shah to point out to us that, before the Gujarat Revenue Tribunal, an objection was Collector granting possession under section 29 was bad on the above account. He was unable to show anything to us on the record. Having regard to the aforesaid considerations. In our judgment, the second submission, on which Mr. Shah wants to support the judgment of the Tribunal must also be rejected.

(9) For the aforesaid reasons, the petition deserves to be allowed. We quash the impugned order of the Tribunal dated 16th April 1962 and restore the order of the District Deputy Collector dated 11th February 1961. Respondent No. 1 shall pay the costs of this petition to petitioners and bear his own.

(10) Petition allowed.


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