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Bai Kashiba Wd/O. Baldevdas Hathibhai Vs. Thakor Fulabhai Mathurbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR484
AppellantBai Kashiba Wd/O. Baldevdas Hathibhai
RespondentThakor Fulabhai Mathurbhai and ors.
Cases ReferredHaji Begum v. Raisang
Excerpt:
.....purchasers and on that footing purchase price has been determined. (3) that the agricultural lands tribunal had misconceived the nature of this inquiry and the revenue tribunal had not considered this aspect and bad thus committed a patent error of law. if such were the case it would be possible to say that the burden of leading the evidence relevant to the issues in the inquiry would be on the parties and if any party on whom the burden of proving a particular issue lies does not lead evidence to prove such issue, be must fail. whatever steps are relevant to be taken before determing the final purchase price must be taken by the agricultural lands tribunal in this statutory inquiry and if the agricultural lands tribunal failed to give a finding on any of these material questions..........and if there is more than one landlord, then the legislature itself has provided as to how the land deemed to have been purchased is to be ascertained by enacting section 32c. the legislature has conferred that choice on the landlord. but, if the tenant happens to hold lands beyond the ceiling area and all the lands belong to a single landlord then the tenancy act does not provide as to who and how the lands deemed to have been purchased are to be determined, separated and specified the division bench, therefore, ultimately held that the determination of the quantum of land, under the circumstances, would be a step and a vital step, which it is necessary for the agricultural lands tribunal to take in order to discharge the duty cast upon it by law. because until that step was taken,.....
Judgment:

J.B. Mehta, J.

1. These three petitions under Article 227 of the Constitution are filed by the landlady who was the widow of one Patel Baldevdas Hathibhai in respect of three S. Nos. 48/1, 48/2 and 50 of Radhavanj village, in Taluka Matar, District Kaira in the possession of different tenants who were held to be deemed purchasers on 1-4-57 and in whose cases the purchase has been determined in proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Act'. The revenue authorities as well as the Revenue Tribunal held that the respondents-tenants had become deemed purchasers and on that footing purchase price has been determined. It is this finding which is challenged in these petitions. All these three petitions raise common questions of law and facts and they are disposed of by this common order.

2. Mr Patel raised three grounds:

(1) That the landlady being under a disability there was a postponed date and her tenants could not become deemed purchasers on 1-4-57?

(2) That the finding of the Revenue Tribunal was perverse in all these three cases that the concerned tenants did not hold land in excess of the ceiling limit and they become deemed purchasers.

(3) That the Agricultural Lands Tribunal had misconceived the nature of this inquiry and the Revenue Tribunal had not considered this aspect and bad thus committed a patent error of law.

3. As regards the first contention of Mr. Patel it is not disputed that the petitioner's husband died on 8-1-58. The tenants would become deemed purchasers on 1-4-57 and they would not be divested of this compulsory purchase if the landlord died thereafter and his near was a person suffering from a disability as a minor or a widow so as to postpone the deemed purchase in such a case. Section 32F(1) would not apply to such a case of a landlord who suffered from no such disability and whose tenants became deemed purchasers under Section 32 of the Act. It is only if the landlord is a minor or a widow or a person subject to any mental or physical disability or a person serving as a member of the armed forces on the tillers' day (bat the deemed purchase would be postponed as provided under Section 32F(1)(a). The said condition, however, should apply at the date of the deemed purchase on 1-4-57 and if on that date the landlord was not a widow but her husband was alive, there would be no question of the purchase date being extended. Therefore, the Revenue Tribunal has not committed any error of law so far as the first question is concerned.

4. As regards the other two contentions raised by Mr. Patel the nature of the inquiry under Section 32G must be kept in mind. Under Section 32G(1) as soon as may be after the tillers' day the Tribunal shall publish or cause to be published a public notice in the prescribed form in such village within its jurisdiction calling upon-

(a) all tenants who under Section 32 are deemed to have purchased the lands,

(b) all landlords of such lands, and

(c) all other persons interested therein

to appear before it on the date specified in the notice. This notice shall be served individually to each such tenant, landlord and also as far as practicable, other persons calling upon each of them to appear before it on the date specified in the said public notice. This is the first step to be taken by the Agricultural Lands Tribunal of issuing a notice. The next step under Section 32G(2) is to record a statement of the tenant to determine his willingness to purchase the land. Under Section 32G(3) if the tenant fails to appear or is not willing to purchase the land, the Agricultural Lands Tribunal declares that the tenant is not willing to purchase and the purchase is declared ineffective. If, however, the tenant is willing to purchase the Lands Tribunal under Section 32G(4) shall after giving an opportunity to the tenant and landlord and all persons interested in the land to be heard and after holding the inquiry determine the purchase price of such land in accordance with Section 32H and 63A (3). The proviso deals with the cases where the price has been mutually agreed upon. The scheme of Section 32G is to provide for the determination of the purchase price but before finally passing the orders regarding the purchase price, the Agricultural Lands Tribunal has to pass several orders before that stage of determination of the purchase price is reached. This position was clarified by the Division Bench consisting of Shelat C.J. (as be then was) and Shah J. in Abdul v. State VI G.L.R. 730 at page 740 where the scheme of Section 32 was interpreted and it was held that Section 32G does not contemplate only one order viz. determining the purchase price but several other orders before the stage of determining the purchase price was reached. In Bapubhai v R.B. Mehta, VIII G.L.R. 110 at page 117 the Division Bench consisting of Miabhoy, C.J. and Vakil J. while interpreting the scheme of Section 32G also pointed out that for determining the purchase price the Legislature has conferred certain powers and imposed certain duties on the Agricultural Lands Tribunal. In the performance of those functions, the first step, which the Agricultural Lands Tribunal is required to take is to issue a notice to the parties concerned to appear before it. On the day so fixed, the next step which the Agricultural Lands Tribunal is required to take is to ascertain from the tenant whether he is willing or not willing to purchase the land If the tenant fails to appear or expresses unwillingness to purchase, then the Agricultural Lands Tribunal is required to make a formal order. That formal order is to declare that the tenant is unwilling to purchase and that the purchase is ineffective. If, however, the tenant expresses his willingness to purchase, then further proceedings have to be taken by the Agricultural Lands Tribunal for determining the purchase price. If the tenant holds below the ceiling area, then nothing further is required to be done, except to hold such proceedings because in that contingency, all the lands held by the tenant are deemed to have been purchased by him. It is quite obvious that, in order to determine the price of land, the Agricultural Lands Tribunal must know not only the quality, the productivity and such other factors as determine the price, but also the quantum of the land of which the tenant has become the owner. The latter is as important as any other factor for the determination of the price In a case where the tenant does not bold any land beyond the ceiling area, the quantum of the land of which the tenant has become the owner is definitely known, and straight off the Agricultural Lands Tribunal can take up the question for the determination of the price. But, in a case where the tenant holds land beyond the ceiling area, it is quite clear that having regard to the provisions contained in Sections 32A and 32B, before the Agricultural Lands Tribunal can undertake a determination of the price, it will have to find out which are the lands of which the tenant has become owner. If a tenant holds beyond the ceiling area and if there is more than one landlord, then the Legislature itself has provided as to how the land deemed to have been purchased is to be ascertained by enacting Section 32C. The Legislature has conferred that choice on the landlord. But, if the tenant happens to hold lands beyond the ceiling area and all the lands belong to a single landlord then the Tenancy Act does not provide as to who and how the lands deemed to have been purchased are to be determined, separated and specified The Division Bench, therefore, ultimately held that the determination of the quantum of land, under the circumstances, would be a step and a vital step, which it is necessary for the Agricultural Lands Tribunal to take in order to discharge the duty cast upon it by law. Because until that step was taken, Section 32A and 32B could not be applied and without fulfilling these two conditions the tenant could not be held to be deemed purchaser, because Section 32 itself was subject to the provisions of the succeeding Sub-sections.

5. In the present case there was no evidence whatever before the Agricultural Lands Tribunal on this relevant aspect. The Revenue Tribunal, however, brushed aside this aspect on the simple ground that Section 32B being of the nature of exception unless the landlord alleged and proved his part of the case the tenant must be held to be a deemed purchaser. The Revenue Tribunal thus proceeds on the footing as if this was an adversary inquiry, where in absence of the relevant evidence the question has to be resolved by technical consideration of onus of proof. This type of erroneous approach was corrected by the Division Bench, consisting of Bhagwati J. (as he then was) and Shelat J., in Haji Begum v. Raisang VIGL. R. 810. At page 815, Bhagwati J. speaking for the Division Bench pointed out that the inquiry before the Agricultural Lands Tribunal is not initiated as a result of any application by any party moving the Agricultural Lands Tribunal for redress and the other party opposing such application. If such were the case it would be possible to say that the burden of leading the evidence relevant to the issues in the inquiry would be on the parties and if any party on whom the burden of proving a particular issue lies does not lead evidence to prove such issue, be must fail. But the inquiry which is to be held by the Agricultural Lands Tribunal is of a different character and the purpose of the inquiry is to fix the purchase price consequent upon the tenant being declared to be the owner of the land tilled by him. Section 32G lays an obligation on the Agricultural Lands Tribunal to determine the purchase price of the land and in doing so the Agricultural Lands Tribunal is required to give an opportunity to the tenant and landlord and all other persons interested in the land to be heard and to hold an inquiry for the purpose. The section also lays down the method of computation of the purchase price and the factors which are required to be taken into account by the Agricultural Lands Tribunal in determining the purchase price. The Agricultural Lands Tribunal is, therefore, not tied down to the evidence which may be adduced before it by the parties but can also rely on other material before it, provided of course the parties are given an opportunity to say whatever they want to in regard to such material and to tender their explanation in regard to it. This last qualification is plainly nothing but a requirement of the principles of natural justice which must be observed by the Agricultural Lands Tribunal as a quasi-judicial body. It was also in terms held that if neither the landlord nor the tenant appeared at the hearing of the inquiry oiled evidence, the Agricultural Lands Tribunal could not refuse to determine the purchase price on the ground that no material has been placed before it by the parties. In this view of the nature of the inquiry, the Revenue Tribunal was obviously in error in proceeding on the footing that it was for the landlord to lead evidence and prove that the tenant held land in excess of the celling and unless such evidence was led the tenant would become a deemed purchaser. Whatever steps are relevant to be taken before determing the final purchase price must be taken by the Agricultural Lands Tribunal in this statutory Inquiry and if the Agricultural Lands Tribunal failed to give a finding on any of these material questions on which it must pass order; this inquiry must be quashed on this narrow ground that it did not hold inquiry into the quantum of land held by the tenant before holding him to be a deemed purchaser. Mr. Shah, however, argued that if the landlord was served with a notice the inquiry became an adversary type of inquiry. There is no substance in this contention of Mr. Shah for the simple reason that the whole scheme of Section 32G is to determine the purchase price after first holding that the concerned tenant is a deemed purchaser who is willing to purchase the land in question. Therefore, unless this vital step was first taken of determining the quantum of land held by a tenant, the Agricultural Lands Tribunal could not go into the question of purchase price at all and the nature of inquiry would not change. In fact this is not an adversary inquiry where only the landlord and the tenant are concerned but the statutory inquiry entrusted by the Legislature to this particular Agricultural Lands Tribunal. If it ultimately comes to the conclusion that if the tenant was holding land in excess of the ceiling, it will have to hold further inquiry as to what is to happen to the balance land which if cannot be surrendered to the landlord would have to be disposed of under Section 32P. Therefore, on this ground all the three petitions ought to be allowed by quashing the order of the Revenue Tribunal and remanding the matter to the Agricultural Lands Tribunal to determine the quantum of land held by the tenant for disposing of Section 32G proceedings before it in accordance with law in the light of these observations.

6. Mr. Patel also argued that the Agricultural Lands Tribunal had not even gone into the question as to who was the tenant on the relevant date 1-4-57 who could become the deemed purchaser so far as S. Nos. 48/1 and 48/2 are concerned which are the subject matter of Special Civil Applications Nos. 1007 and 994 of 1963. So far as S. No. 48/1 is concerned the Revenue Tribunal has proceeded on the footing that the question as to who was tenant on 1-4-57 would be hardly material. If the father Kabhai died before 1-4-57, respondent's son would be entitled to continue tenancy under Section 40 of the Act and if he died after 1-4-57, the said son would get benefit of the statutory purchase by his father under Section 32. This reasoning proceeds on the assumption that the benefit of Section 40 was available only to this respondent as the sole heir. In fact the Agricultural Lands Tribunal was bound to go into this question as to whether the tenant who was held to be the deemed purchaser was the tenant on the relevant date 1-4-57. There was no evidence on the record as to when the father died. Therefore, even on this question as to whether the present respondent was the tenant entitled to be the deemed purchaser, the matter will have to be remanded so far as S. No. 48/1 is concerned.

7. Even as regard S. No. 48/2 the same difficulty arises because the Agricultural Lands Tribunal did not consider this question at all as to whether respondent was the tenant in possession on 1-4-57. In the memo of appeal before the Collector the relevant record entries were produced to show that the mortgagee was in possession. The Revenue Tribunal takes into consideration this entry and then proceeds to give a finding on mere inferences which are wholly unjustified. The Revenue Tribunal holds that in any event Section 32G would apply even if the concerned tenant was inducted after 8-1-58 ignoring the fact that if such a tenant was inducted by the widow who was the landlord under the disability, there would be no question of deemed purchase on the expiry of one year. The Revenue Tribunal also proceeds on an assumption that in 1952-53 the present tenant was in possession before the mortgagee of the land in question. There is no evidence whatsoever as the record entry only mentions the existence of some tenants and it is a pure surmise of the Revenue Tribunal that this very person was a tenant in 1952-53. The Revenue Tribunal also discarded this entry on the basis that the mortgagee who was shown to be in possession of these lands must not be in actual possession relying on some sentences in the oral evidence and on the footing that the mode of cultivation was through the tenant even at the time of mortgagee's possession. That however does not show that this very tenant was the tenant of the mortgagee. Therefore, the whole approach of the Revenue Tribunal is to proceed on mere conjecture. The fact remains that the Agricultural Lands Tribunal had not applied its mind at all to the relevant question as to whether this tenant was in possession on 1-4-57 so as to be entitled to this compulsory purchase and the matter must be remanded for this purpose also.

8. In the result all these three petitions are allowed and the order of the authorities including the Revenue Tribunal are set aside and the matters are remanded to the Agricultural Lands Tribunal for determination of the purchase price after first deciding the question as to the land held by the tenants in question, and as to whether so far as S. No. 48/1 and 48/2 were concerned, the person concerned was a tenant in possession on 1-4-57 so that he could become a deemed purchaser.

9. After these relevant questions are decided and it is held that the tenant are entitled to be deemed purchasers, the purchase price would be determined in accordance with law. Rule accordingly made absolute, there shall be no order as to costs in all these petitions.


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