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Babulal Pitambardas Gandhi Vs. Bai Mani Wd/O Prahladbha1 Barot and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR823
AppellantBabulal Pitambardas Gandhi
RespondentBai Mani Wd/O Prahladbha1 Barot and ors.
Cases Referred(Haji Begum v. Raisang Bechar
Excerpt:
- - 5 670 this figure of the purchase price was arrived at by the agricultural lands tribunal by capitalising the rent by applying the multiplier of 20. there was material before the agricultural lands tribunal in regard to the profits of agriculture of similar lands in the locality the prices of crops and commodities in the locality and the assessment of the lands and the agricultural lands tribunal actually referred to that material in its order observing that all these factors were liable to be taken into account in fixing the purchase price but took the view that the rental value of the lands would generally speaking be an index of the profits of agriculture as well as the prices of crops and commodities in the locality and improvements made in the land by the landlord or the..........what should be the purchase price payable by prahladbhai barot to the petitioner. the agricultural lands tribunal accordingly issued notices to the parties and held an inquiry for the purpose of determining the purchase price of the lands under section 32g of the act and after hearing the parties made an order fixing the purchase price of the lands at rs. 5 670 this figure of the purchase price was arrived at by the agricultural lands tribunal by capitalising the rent by applying the multiplier of 20. there was material before the agricultural lands tribunal in regard to the profits of agriculture of similar lands in the locality the prices of crops and commodities in the locality and the assessment of the lands and the agricultural lands tribunal actually referred to that material in.....
Judgment:

P.N. Bhagwati, J.

1. The petitioner was the owner of several lands bearing Survey Nos. 39/1 263 1404 1407 1408 1639 and 1640 situate in village Sathod Taluka Dabhoi District Baroda. The aggregate assessment in respect of the lands amounted to Rs. 85/-. One Prahladbhai Barot the husband of the first respondent was a tenant of the petitioner in respect of the lands paying an aggregate rent of Rs. 283-50 in accordance with the provisions of Sections 8 and 9 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act). On the tillers day that is 1 April 1957 Prahladbhai Barot admittedly became the deemed owner of the lands and the question arose as to what should be the purchase price payable by Prahladbhai Barot to the petitioner. The Agricultural Lands Tribunal accordingly issued notices to the parties and held an inquiry for the purpose of determining the purchase price of the lands under Section 32G of the Act and after hearing the parties made an order fixing the purchase price of the lands at Rs. 5 670 This figure of the purchase price was arrived at by the Agricultural Lands Tribunal by capitalising the rent by applying the multiplier of 20. There was material before the Agricultural Lands Tribunal in regard to the profits of agriculture of similar lands in the locality the prices of crops and commodities in the locality and the assessment of the lands and the Agricultural Lands Tribunal actually referred to that material in its order observing that all these factors were liable to be taken into account in fixing the purchase price but took the view that the rental value of the lands would generally speaking be an index of the profits of agriculture as well as the prices of crops and commodities in the locality and improvements made in the land by the landlord or the tenant and that even assessment would be reflected in the rental value and that capitalisation of the rent was therefore the only scientific way of determining the value of the land and in this view of the matter calculated the purchase price of the lands at twenty times the rent that is Rs. 283-50 x 20 = Rs. 5 670 The petitioner was aggrieved by this order passed by the Agricultural Lands Tribunal and he therefore preferred an appeal to the Collector. The appeal purported to be an appeal under Section 14 but it was in fact directed against the determination of the purchase price made by the Agricultural Lands Tribunal under Section 32G and was therefore really an appeal under Section 32J. The Collector who heard the appeal took the view that the Agricultural Lands Tribunal had taken all the relevant factors into account and moreover the purchase price fixed by it was approximately equal to about sixty times the assessment which was a reasonable figure and he did not therefore see any reason to interfere with the order passed by the Agricultural Lands Tribunal. The Collector accordingly dismissed the appeal and confirmed the order of the Agricultural Lands Tribunal. The petitioner thereupon preferred a Revision Application to the Revenue Tribunal. During the pendency of the Revision Appliction Prahladbhai Barot died leaving him surviving his widow the first respondent as his only heir and legal representative and the first respondent was accordingly brought on record as a party respondent in place and stead of Prahladbhai Barot. The Revision Application thereafter came up for hearing before the Revenue Tribunal and on a preliminary objection being raised on behalf of the first respondent the Revenue Tribunal held that no Revision Application lay against the order made by the Collector under Section 32J and that the Revision Application preferred by the petitioner was therefore not competent and the Revision Application was accordingly dismissed. The petitioner thereupon preferred the present petition in this Court challenging the validity of the order of the Revenue Tribunal and in the alternative the petitioner also challenged the legality of the orders passed by the Agricultural Lands Tribunal and the Collector.

2. Now so far as the challenge to the validity of the order of the Revenue Tribunal is concerned there is no doubt that the challenge must fail in view of the decision of a Division Bench of this Court given on 15 June 1965 in Special Civil Application No. 715 of 1961 (Abdul Aziz Umarbhai v. The State VI G.L.R.) 730 where the Division Bench held that no revision application lies against an order passed by the Collector under Section 32J of the Act. This decision being a decision of a Division Bench of this Court is binding upon us and having regard to this decision we must reject the contention urged on behalf of the petitioner that the Revenue Tribunal was in error in holding that the Revision Application preferred before it on behalf of the petitioner was not maintainable and that it had no jurisdiction to entertain the same.

3. That leaves for consideration the challenge to the orders of the Agricultural Lands Tribunal and the Collector. The main ground on which the orders of the Agricultural Lands Tribunal and the Collector were challenged was that the Agricultural Lands Tribunal and the Collector had failed to take into account the factors set out in Section 63A Sub-section (3) in determining the purchase price of the lands. Now we have already pointed out in a judgment delivered by us on 29th June 1965 in Special Civil Application No. 584 of 1962 (Haji Begum v. Raisang Bechar VI G.L.R. 810 that having regard to the provisions of Section 32G Sub-section (4) and Section 63A Sub-section (3) the Agricultural Lands Tribunal acting under Section 32G and the Collector acting in appeal under Section 32J are bound to determine the purchase price of land of which the tenant has become the deemed owner having regard to the factors set out in Section 63A Sub-section (3) and Rule 37 read with Rule 29 of the Bombay Tenancy and Agricultural Lands Rules 1956 and a fortiori no other factors can be taken into account by them in determining the purchase price of land. If any of the factors set out in Section 63A Sub-section (3) and Rule 37 read with Rule 29 are ignored or brushed aside or any extraneous or irrelevant factors are taken into account the determination of the purchase price made by the Agricultural Lands Tribunal or the Collector as the case may be would be vitiated. If therefore on an examination of the orders of the Agricultural Lands Tribunal and the Collector in the present case we and that they have failed to take into account one or more of the factors set out in Section 63A Sub-section (3) and Rule 37 read with Rule 29 their orders would be liable to be set aside. Of course the final order being the order passed by the Collector it would have to be seen whether that order has been passed taking into account factors set out in Section 64A Sub-section (3) and Rule 37 read with Rule 29. If the order of the Collector is in compliance with this requirement of law it would not matter whether the order of the Agricultural Lands Tribunal is a proper order or not for the order of the Agricultural Lands Tribunal would have merged in the order of the Collector. If however the order of the Collector is bad as not complying with this requirement we would have to examine whether the order of the Agricultural Lands Tribunal also does not suffer from that defect for if the order of the Agricultural Lands Tribunal also suffers from that defect it would be necessary to set aside both the orders and to remand the matter to the Agricultural Lands Tribunal for a fresh determination of the purchase price after complying with the requirements of the Act.

4. Turning to the order of the Collector we find that all that the Collector has done is to affirm the approach adopted by the Agricultural Lands Tribunal in determining the purchase price of the lands and since in his view the Agricultural Lands Tribunal had taken into account all the relevant factors laid down in Section 63A Sub-section (3) he did not see any reason to interfere with the order of the Agricultural Lands Tribunal. The Collector therefore in substance approved of the line of reasoning followed by the Agricultural Lands Tribunal. It therefore becomes necessary to examine the line of reasoning adopted by the Agricultural Lands Tribunal in determining the purchase price of the lands. The question which we must ask ourselves is: Has the Agricultural Lands Tribunal taken into account all the factors set out in Section 63A Sub-section (3) and Rule 37 read with Rule 29. If the Agricultural Lands Tribunal has done so then no fault can be found with the order passed by it and consequently with the order passed by the Collector. But when we look at the order of the Agricultural Lands Tribunal we find that though the Agricultural Lands Tribunal has set out in its order the factors enumerated in Section 63A Sub-section (3) and accepted the position that all these factors have to be taken into account in determining the purchase price of the lands it has really not taken them into account in determining the purchase price of the lands at Rs. 5 670

5. Let us examine the order of the Agricultural Lands Tribunal a little more closely. The Agricultural Lands Tribunal starts the discussion of this particular point by observing that all these factors meaning thereby the factors set out in Section 63A Sub-section (3) have to be considered cumulatively though it would be permissible to the Agricultural Lands Tribunal to attach more importance to one factor as compared to the other depending upon the circumstances of each case. This is a perfectly legitimate proposition to which no exception can be taken. Then the Agricultural Lands Tribunal proceeds to observe and that is the basis on which the purchase price is determined at 2 times the rent namely:

Having regard do the nature of the factors enumerated the most important factor is the rental value of the land. The rent of land generally speaking is an index of the profits of agriculture as well as the profits of crops and commodities and improvement made in the land by the landlord or the tenant. Even assessment would be reflected in the rental value. Capitalisation of rent is the only scientific way of deter mining the value of the land...

This observation clearly flies in the face of the provisions of Section 32G Sub-section (4) read with Section 63A Sub-section (3): in effect it amounts to this namely that only the rental value of the land may be taken into account and that the other factors set out in Section 63A Sub-section (3) need not be separately considered. The rental value of similar lands in the locality is a factor set out in Clause (a) of Section 63A Sub-section (3) and it is reasonable to assume hat the rental value of the land in question would reflect the rental value of similar lands in the locality. The rental value of the land would therefore constitute one of the factors to be taken into account in deter mining the purchase price of the land. But it would not be correct to say that once you take the rental value of the land into account that would cover also the other factors such as profits of agriculture and prices of crops and commodities in the locality improvements made in the land by the landlord or the tenant and the assessment. Rental value is defined in Clause (7) of Section 117C of the Bombay Land Revenue Code 1879 to mean-and that is the definition which is also applicable under the Act by reason of Section 2(21) of the Act the consideration (including premia if any or any sum of money paid or promised or a share of crops or any other thing of value rendered periodically or on specified occasions) for which land is or could be leased for a period of one year for its most advantageous use. Now it must be remembered that the rent in respect of lands governed by the Act is no longer a matter of mutual agreement between the parties. Section 8 fixes a maximum beyond which rent cannot be charged by the landlord to the tenant and that maximum is five times the assessment payable in respect of the land or Rs. 20/per acre which ever is less. There is also a minimum fixed by the section which says that the rent shall not be less than twice the assessment. Section 9 Sub-section (1) provides that subject to the maximum and minimum limits of rent fixed under Section 8 the Mamlatdar shall for each village or group of villages or for any area in such village or group within his jurisdiction fix the rate of rent payable by a tenant for the lease of different classes of land situate in such village or group of villages or areas as the case may be. Of course in arriving at such rate Section 9 Sub-section (2) provides that the Mamlatdar shall have regard to the rents prevalent in the locality the productivity of the lands the prices of commodities and such other factors as may be prescribed but the rate fixed by the Mamlatdar cannot exceed five times the assessment or Rs. 20/per acre whichever is less. This maximum limit was fixed by the Act with a view to striking at the profit derived by the landlord as a middleman from he actual tiller of the soil and as a step in the progressive implementation of the goal to make the tiller of the soil the owner of it. There being thus an artificial maximum limit beyond which the rent fixed by the Mamlatdar under Section 9 Subsection (1) cannot go the rent fixed by the Mamlatdar would not reflect factors such as profits of agriculture of similar lands in the locality or the prices of crops and commodities in the locality. Moreover the position in regard to the profits of agriculture and prices of crops and commodities might change from time to time while the rent might have been fixed by the Mamlatdar under Section 9 Sub-section (1) at one particular point of time in the past. That is why the Legislature has provided in Section 63A Subsection (3) that besides the rental value of land which in case of lands governed by the Act would necessarily be the rent fixed by the Mamlatdar under Section 9 Sub-section (1) the profits of agriculture of similar lands in the locality and the prices of crops and commodities in the locality shall also be taken into account. Even the assessment is required to be taken into account for the rent fixed by the Mamlatdar under Section 9 Sub-section (1) would not always reflect the factor of assessment. The maximum limit of rent being five times the assessment or Rs. 20/per acre whichever is less the rent would not reflect the factor of assessment where the assessment is more than Rs. 4/per acre. Take for example a case where the assessment is Rs. 10/per acre. In such a case the maximum limit of the rent would be not five times the assessment but Rs. 20/per acre. Compare it with a case where the assessment is Rs. 4/per acre. In this latter case also the maximum rent would be Rs. 20/per acre. If the rent fixed by the Mamlatdar under Section 9 Sub-section (1) in both these cases is the maximum rent obviously rent would not reject the factor of assessment: the rent being the same in both cases the assessment in one case would be Rs. 4/per acre while in the other case it would be Rs. 10/per acre. That is why the Legislature has provided that in addition to the rental value the assessment payable in respect of the land shall also be taken into account. As a matter of fact we may point out that if the view taken by the Agricultural Lands Tribunal were correct namely that the rental value of land would afford an index of the profits of agriculture as well as prices of crops and commodities in the locality and would even reflect assessment Clauses (c)(d) and (0 of Section 63A Sub-section (3) would be rendered totally superfluous. If the rental value of land reflected the factors set out in these clauses why was it necessary for the Legislature to make specific provision in regard to these factors in Clauses (c)(d) and (f)? The answer clearly is that specific mention of these factors was necessary for having regard to the provisions contained in Sections 8 and 9 these factors could not be regarded as reflected in the rental value of land being the factor set out in Clause (a). We are therefore of the view that the Agricultural Lands Tribunal committed an error of law apparent on the face of the order in not taking into account the factors set out in Clauses (c)(d) and (f) though there was material before it in regard to those factors. The order passed by the Agricultural Lands Tribunal and the Collector must therefore be set aside.

6. We therefore allow the petition set aside the orders passed by the Agricultural Lands Tribunal and the Collector and remand the matter to the Agricultural Lands Tribunal with a direction to dispose of the matter in accordance with law in the light of the observations contained in this judgment. There will be no order as to costs.


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