1. Being aggrieved and dissatisfied by the judgment and order dated 18th August 1978 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN. B. Section 177 of 1976 confirming the judgment and order passed by the Assistant Collector, Chorasi Prant, Surat, in Tenancy Appeal No. 14 of 1976, who confirmed the order passed by the Additional Mamlatdar and A.L.T., Chorasi, holding that respondents Nos. 1 & 2 were entitled to purchase the land bearing S. No. 210/2 admeasuring 0 acre-25 gunthas of the sim of village Jahangirabad, Taluka, Chorasi, along with the bungalow and well situated on the said land, the petitioner has filed this Special Civil Application under Article 227 of the Constitution of India.
2. S. No. 210/2 admeasuring 0 acres-25 gunthas assessed at Rs. 4-12 P. of village Jahangirabad, Taluka Chorasi, was owned by the widow Bai Ujamben-respondent No. 3. Now, it is not disputed in this petition that respondent No. 1 and respondent No. 2 were tenants of the land. No revision application was filed by the landlord contending that respondents Nos. 1 & 2 are not tenants of the said land. Proceedings under Section 32-G were initiated by the Mamlatdar & Agricultural Lands Tribunal for fixing the purchase price of the land. He fixed the purchase price of the land at Rs. 800/- for the bungalow also Rs. 800/- and that of well at Rs. 800/- by his judgment and order dated 20-8-75.
3. Against the said judgment and order, the petitioner who states that he was a tenant of the bungalow, had preferred Tenancy Appeal No. 14/76 and the landlady had also preferred Tenancy Appeal No. 22/76 before the Assistant Collector, Chorasi Prant, Surat. Before the Assistant Collector it was pointed out that the petitioner was in possession of the bungalow and, therefore, there was no question of fixing purchase price with regard to the said premises under Section 32-G of the Bombay Tenancy and Agricultural Lands Act. The Assistant Collector held that in the tenancy proceedings the Court was concerned with the Agricultural land dated 28-8-76 and not with the bungalow. However, he confirmed the order passed by the Mamlatdar and Agricultural Lands Tribunal fixing the purchase price of the bungalow. Against the said order, the petitioner preferred the revision application. That revision application was also dismissed by the Revenue Tribunal without taking into consideration the provisions of the Tenancy Act.
4. Section 16(1) of the Bombay Tenancy and Agricultural Lands Act provides that a tenant who is in occupation of a dwelling house built at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord, such tenant shall not be evicted from such dwelling house and site thereof and the land immediately appurtenant thereto and necessary for its enjoyment except as provided in Clauses (a) & (b). Sub-section (2) of Section 16 provides that Sub-section (1) shall not apply to a dwelling house which is situated on any land used for the purposes of agriculture from which tenant has been evicted under Section 31. Section 17 gives priority to such tenant who is in possession of dwelling house to purchase it if landlord intends to sell it.
5. Section 17A gives right to the tenant to purchase such site as referred to in Section 16 and that he is required to give notice in writing to the landlord to that effect. Section 17B creates a deeming provision whereby such tenant is deemed to have purchased such site referred to in Section 16 over which he has constructed a dwelling house built at the expense of such tenant or his predecessor-in-title and he is in possession thereof. Section 17B(1) which is material for our purposes is as under:
17B(1). On and with effect from such date as the State Government may, by notification in the Official Gazette, specify, every tenant referred to in Section 16 shall be deemed to have purchased from his landlord the site on which the dwelling house occupied by such tenant was built, and the land immediately appurtenant thereto and necessary for enjoyment of the dwelling house free from all encumbrances, at the price to be fixed by the Tribunal, being a price not exceeding twenty times the annual rent for the site.
6. This deeming provision provides that every tenant referred to in Section 16 shall be deemed to have purchased from his landlord the site in which dwelling house occupied by such tenant was built and the land immediately appurtenant thereto and necessary for enjoyment of the dwelling house free from all encumbrances. This Section 17B pre-supposes that a tenant must be in actual possession and that the said dwelling house ought to have been constructed at the expense of such tenant or his predecessor-in-title on a site belonging to his landlord. Admittedly in this case it is not the say of the respondents Nos. 1 & 2 that the bungalow was constructed by them at their expense or at the expense of their predecessor-in-title. It is further admitted that they are not in possession of the said premises. Therefore, respondents Nos. 1 & 2 who have not constructed a dwelling house in agricultural land and who are not in possession thereof could not be its deemed purchasers under Section 17B of the Tenancy Act. In this view of the matter, the Mamlatdar and Agricultural Lands Tribunal had no jurisdiction or authority to fix the purchase price of the said bungalow. Respondents Nos. 1 & 2 cannot be said to be deemed purchasers of the said premises.
7. In the result, the petition is allowed. The order passed by the Mamtatdar & Agricultural Lands Tribunal holding that respondents Nos. 1 & 2 are deemed purchasers of the bungalow situated in Section No. 210/2 and fixing its purchase price at Rs. 800/- which is confirmed by the Assistant Collector and the Gujarat Revenue Tribunal in appeal and revision application is quashed and set aside. Rule absolute with no order as to costs.