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Shanabhai Shivabhai Thakore and ors. Vs. Mukeshbhai Ramanbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1978)19GLR85
AppellantShanabhai Shivabhai Thakore and ors.
RespondentMukeshbhai Ramanbhai and anr.
Excerpt:
.....it is possible that the mamlatdar may be satisfied from this much material and grant a certificate. the mamlatdar in his capacity as a statutory authority under section 88c, could not have delegated his function to the tenant and could not have abandoned his statutory duty in favour of the tenant, lie could not have conferred the power on the tenant to 'decide' whether or not the land owner satisfied the requirements enjoined by section (1). it is surprising that the deputy collector and the grt persuaded themselves to the view that if the tenant did not object, the mamlatdar can issue a certificate without holding any inquiry and without, deciding' the question that on basis of the inquiry made by him, he was satisfied that the holding of the land owner did not exceed the..........by the deputy collector as confirmed by the grt is void ab initio.4. the petitioner must, therefore, succeed. the order at annexue 'a' as confirmed by the order at annexure 'b' as confirmed by the order at annexure 'c' is quashed and set aside. the matter will now go back to the mamlatdar with a direction to hold an appropriate inquiry and after recording a statement of the landowner and after gathering such materials he may consider necessary, to pass an appropriate order of course the mamlatdar will have to issue a notice to the tenant to remain present at the inquiry and to afford him reasonable opportunity to produce such material as he may desire to produce besides subjecting the land-owner and his witnesses to cross-examination. the petition is allowed. rule is made absolute. there.....
Judgment:

M.P. Thakkar, J

1. Can the Mamlatdar acting as a statutory authority under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Act'), certify that the income of a landlord-owner does not exceed Rs. 1500/- without holding any inquiry and without gathering any material, merely because a tenant states that he has no objection to the grant of such certificate? That is the question which emerges in this petition under Article 227 of the Constitution of India directed against a certificate granted by the Mamlatdar of Borsad at Annexure 'A' on October 5, 1971 as confirmed by the Deputy Collector at Annexure 'B' dated February 3, 1972 as confirmed by the Gujarat Revenue Tribunal (GRT) as per order at Annexure 'C' dated July 25, 1972.

2. Section 88C deserves to be quoted in order to appreciate the point raised in this petition in its proper perspective:

Section 88C. (i) Save as otherwise provided by the Bombay Tenancy and Agricultural Lapds (Gujarat Amendment) Act, 1960, nothing in sees, 32 to 32R (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such lands does not exceed Rs. 1500/-.

Provided that the provisions of this Sub-section shall not apply to any person who hold such land as a permanent tenant or who has leased such land on permanent tenancy to any other person.

(2) Every person eligible to the exemption provided in Sub-section (1) shall make an application in the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate, within the prescribed period for a certificate that he is entitled to such exemption:

Provided that where such person is a widow she may make such application before the 1st day of July, 1961 notwithstanding that the period prescribed, under this section has expired.

(3) On receipt of such application, the Mamlatdar shall, after giving, notice to the tenant or tenants of the land, hold inquiry and decide whether the land leased by such person, is exempt under Sub-section (1) from the provisions of Sections 32 to 32R.

(4) If the Mamlatdar decides that the land is so exempt, he shall issue a certificate in the prescribed form to such person.

3. The legislature has entrusted to the Mamlatdar the function of ascertaining as to whether an owner of land who claims a certificate holds land not exceeding an economic holding and whether his total annual income including rent of the leased land does not exceed Rs. 1500/-. Sub-section (3) of Section 88C in terms enjoins the Mamlatdar to hold an inquiry and decide whether the land in question is exempt under Sub-section (1) of Section 88C from the provisions of Sections 32 to 32R by reason of the size of his holding and size of his annual income. Under Sub-section (4) of Section 88C, it is the statutory function of the Mamlatdar to take a decision and certify that the land is so exempt. In the present case, admittedly, the Mamlatdar did not held any inquiry. He did not even record the statement of the land owner. He inquired from the tenant whether he had any objection to the grant of the certificate and as the tenant stated that the matter had been compromised and he had no objection, he issued a certificate under Section 88C to the effect that the holding of the land owner did not exceed an economic holding and that his annual income did not exceed Rs. 1500/- from all sources. It is not for the tenant to hold an inquiry. It is not for the tenant to gather the material. It is not for a tenant to decide that the requirements of Section 88C are satisfied. These functions are entrusted by the legislature to the Mamlatdar and not to the tenant. An obligation is imposed by the statute on the Mamlatdar to hold an inquiry and to 'Decide'. The least that the Mamlatdar has to do is to record a statement of the land owner and to ascertain from him as to what is the size of his holding and that is the size Of his annual income. It is possible that the Mamlatdar may be satisfied from this much material and grant a certificate. But when he does not record even the statement of the land owner and does not hold any inquiry, the certificate issued by him is a nullity inasmuch as the sine qua non for issue of a certificate is holding of an inquiry and rendering of a decision to the effect that the size of the holding and size of the income does not exceed the statutory limits. To 'decide' is to (1) render a judgment on an issue of fact or law (2) on the basis of assessment of existing material (3) after weighing pros and cons by (4) employing the process of raciocination. When pros and cons are not weighed, when material is not assessed, when rational faculty is not taxed there can be no decision. The Mamlatdar cannot, therefore, be said to have decided the issue regarding the size of the holding or the size of the income of the applicant for the certificate. Thus, in present case, no inquiry has been held, no material has been gathered, no decision has been recorded. The Mamlatdar in his capacity as a statutory authority under Section 88C, could not have delegated his function to the tenant and could not have abandoned his statutory duty in favour of the tenant, lie could not have conferred the power on the tenant to 'decide' whether or not the land owner satisfied the requirements enjoined by Section (1). It is surprising that the Deputy Collector and the GRT persuaded themselves to the view that if the tenant did not object, the Mamlatdar can issue a certificate without holding any inquiry and without, 'deciding' the question that on basis of the inquiry made by him, he was satisfied that the holding of the land owner did not exceed the statutory limit and that his annual income did not exceed the statutory willing. The order passed by the Mamlatdar as confined by the Deputy Collector as confirmed by the GRT is void ab initio.

4. The petitioner must, therefore, succeed. The order at Annexue 'A' as confirmed by the order at Annexure 'B' as confirmed by the order at Annexure 'C' is quashed and set aside. The matter will now go back to the Mamlatdar with a direction to hold an appropriate inquiry and after recording a statement of the landowner and after gathering such materials he may consider necessary, to pass an appropriate order of course the Mamlatdar will have to issue a notice to the tenant to remain present at the inquiry and to afford him reasonable opportunity to produce such material as he may desire to produce besides subjecting the land-owner and his witnesses to cross-examination. The petition is allowed. Rule is made absolute. There will be no order regarding costs.


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