RASULMIYA REHMANMIYA Vs. PATEL LALBHAI SHANKERBHAI
HIGH COURT OF GUJARAT
PATEL LALBHAI SHANKERBHAI
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(1.) In this Special Civil Application under Articles 226 and 227 of the Constitution of India the petitioner seeks to challenge the order passed by the Gujarat Revenue Tribunal in revision application No. TEN. B. A. 1020 of 1977 where by the Revenue Tribunal has allowed the Revision Application of the respondent landlord and has dismissed the petitioners application under sec. 32 (1) of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act) only on the ground of limitation. In order to appreciate the controversy between the parties centering round the question of limitation it is necessary to note a few relevant facts. The dispute centers round the possession of agricultural lands bearing survey No. 264 admeasuring 1 acre and 10 gunthas situated on the outskirts of village Rasulpur Padal in Thasra taluka of Kheda district. The petitioner claims to be the lawful tenant thereof and respondent is admittedly the owner thereof. Case of the petitioner is that he was in lawful possession and cultivation of the said land as a tenant of the landlord upto 1959 and that the respondent is alleged to have snatched away the possession of the petitioner without following due procedure of law. It is under these circumstances that the petitioner applied to the Mamlatdar and Agricultural Lands Tribunal Thasra under sec. 32 (1B) of the Bombay Tenancy And Agricultural Lands Act on 17-2-1976 for restoration of possession on the ground that he was the lawful tenant of the suit land. He was in possession thereof on the appointed day that is on 15/06/1955 and was dispossessed of the said land by the respondent landlord before the specified date that is the date on which the Bombay Tenancy and Agricultural (Gujarat Amendment) Act 1972 came into force and the said dispossession was done without following the due procedure of the Tenancy Act and that the said land is still in possession of the respondent landlord. The said application was entertained on merits by the Mamlatdar and A. L. T. Thasra and after hearing the parties and permitting them to lead their evidence in respect of the respective contentions the Agricultural Lands Tribunal Thasra by its order dated 15/07/1976 came to the conclusion that the petitioner had made out the case under sec. 32 (1B) of the Tenancy Act for restoration of possession and accordingly his application W4b granted.
(2.) The respondent land lord carried the matter in appeal being tenancy appeal No. 170 of 1976 before the Deputy Collector Anand and in the said appeal a contention was raised that as per the provisions of the Tenancy Act an application can be filed by the aggrieved party within one year of the coming into operation of sec. 32(1B) and hence the application as filed by the petitioner on 17/02/1976 was clearly time barred. The Deputy Collector Anand took the view that as the A. L. T. and Mamlatdar did not reject the application on the ground of limitation the Mamlatdar could be treated to have exercised his suo motu powers under sec. 32(1B) and consequenty the question of limitation did not arise. On the facts of this case the Deputy Collector confirmed the findings of the Mamlatdar on merits. Thereafter the respondent land lord carried the matter by way of revision to the Gujarat Revenue Tribunal under sec. 76 of the Tenancy Act. The only ground that was urged before the Tribunal was that of Limitation. The Tribunal accepted the said contention of the advocate on behalf of the respondent and held that the petitioner was required to file his application under sec. 32(1B) of the Tenancy Act latest by 3 as the period of limitation for such application was prescribed by rule 15 A of the Bombay Tenancy And Agricultural Land Rules 1956 to be one year from the date on which the amending act came into force. That the said act had come into force on 3-3-1973 and hence the application as filed by the petitioner on 17-2-76 was barred by limitation. That is how the respondents revision application was allowed by the Gujarat Revenue Tribunal and the petitioners application under sec. 32(1B) was ordered to be dismissed. The petitioner seeks reversal of the said order passed by the Tribunal on the ground that the Tribunal has committed a patent error of law in doing so.
(3.) In order to appreciate the aforesaid grievance of the petitioner it is necessary to have a look at sec. 32(1B) of the Tenancy Act which reads as under:
"32(1B) Where a tenant who was in possession of land on the appointed day and who on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in sec. 29 or any other provision of the Act is not in possession of such land or any part thereof and such land or any part thereof is in the possession of the landlord or his successor in interest on the said date and such land or part thereof is not put to a non agricultural use on or before the said date then Mamlatdar shall notwithstanding any thing contained in the said direction 29 or any other provision of this Act either suo motu or on an application of the tenant made within the prescribed period hold an enquiry and direct that such land or as the case may be part thereof shall be taken from the possession of the landlord or as the case may be part thereof shall be taken from the possession of the land lord or as the case may be his successor in interest and shall be restored to the tenant; and thereafter the provisions of this section and sec. 32A to 32R (both inClusive) shall. so far as they may be applicable apply thereto subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on which such land or as the case may be part thereof is restored to him;
Provided that the tenant shall be entitled to restoration of land or part thereof as the case may be under this sub-section only (if he gives an undertaking in writing within such period as may be prescribed) to cultivate it personally and if so such thereof as together with the other land held by him as owner of tenant shall not exceed the ceiling area;
Provided further that; (i) If the tenant fails to give such undertaking within such prescribed period or if the tenant after giving such undertaking refuse to accept the tenancy or possession of the lands the land the possession of which the landlord or as the case may be his successor in interests is not entitled to retain under this sub section; or
(ii) if the tenant gives such undertaking and accepts such tenancy or possession of the land such portion of the land referred to in clause (i) to the restoration of which the tenant would not be entitled under the first proviso shall vest in the State government free from all encumbrances and shall be disposed of in the manner provided in sub-sec. (2) of sAc. 32P.
Explanation In this sub section successor in interest means a person who acquires the interest by testamentary disposition or devolution on death.) ;
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