ANANT S.DAVE,J. - (1.) The appellant has filed this appeal under Clause 15 of the Letters Patent challenging the order dated 08.10.2010 passed in Special Civil Application No.7244 of 2008 whereby the learned Single Judge [Coram : Hon'ble Mr. Justice K.S. Jhaveri] confirmed the order dated 31.12.2007 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN.BA.817/1992.
(2.) Certain facts recorded about earlier proceedings in para 2 about round of litigations undertaken by the parties are not in dispute, which reads as under: In the year 1962, proceedings under section 32G of the Bombay Tenancy Act were initiated by the competent authority by registering Tenancy Case No. 371/1962 for the lands bearing Survey No. 1272 admeasuring 2 Acres 29 Gunthas and Survey No. 1542 admeasuring 0.0 Acres 38 Gunthas situated in the sim of Village Changa, Taluka Petlad, District Anand. The competent authority vide order dated 26.11.1962 held that the predecessors of the petitioner and original opponents nos. 2 to 5 are not the tenants of the lands in question. Being aggrieved by the said order, the petitioner preferred Tenancy Appeal No. 179/1982 before the Deputy Collector. The Deputy Collector after hearing the respective parties and after considering the material produced before it, allowed the said appeal. Against the said order, the respondents no. 1 to 1/3 preferred Revision Application No. TEN.B.A. 2043/1982 before the Gujarat Revenue Tribunal. The Tribunal vide order dated 03.09.1984 remanded the matter to the Mamlatdar and ALT, Petlad for fresh inquiry. Pursuant thereto, the Mamlatdar and ALT issued fresh notices to the concerned parties, vide order dated 20.12.1990 held that the deceased Shanabhai Ghanabhai Baraiya was a tenant and he is entitled to purchase the said suit lands from the landlords under section 32G of the Bombay Tenancy and Agricultural Lands Act ["the Act" for short]. Against the said order passed by the Mamlatdar and ALT Petlad, the respondent no. 1 and his heirs preferred Tenancy Appeal No. 412 of 1992 before the Deputy Collector. The Deputy Collector vide order dated 06.08.1992 rejected the said appeal. In addition to the above, as appeared from the record, proceedings under Section 32 1B of the Bombay Tenancy and Agricultural Land Act, 1948 [for short, 'BT and AL Act'] were initiated by registering Tenancy Case No.127/77 and by order dated 30.04.1978 the proceedings were dropped by holding that the provisions of the said section were not applicable to the facts of the case. The heirs of the deceased tenant preferred Tenancy Appeal No.1408/1989 before the Deputy Collector, Kheda which came to be dismissed on 17.08.1989 with observation that tenant may file an application under Section 32(o) of the BT and AL Act, if so advised. Being aggrieved by and feeling dissatisfied with the above nature of observations, landlord approached the Gujarat Revenue Tribunal by filing Revision Application No.TEN.BA.320/83 in which the Tribunal struck down direction qua Section 32(o) of the Act by an order dated 10.09.1985.
(3.) Mr. Nikhil Kariel, learned counsel for the appellant at the outset submitted that order impugned in this appeal passed by the learned Single Judge in exercise of powers under Article 226 and 227 of the Constitution of India discloses no reasons and it referred to events of earlier round of litigation in brief and what transpired before the lower authorities viz. Mamlatdar and ALT, Deputy Collector and the Tribunal for which agreement is recorded. In absence of any discussion of the nature of findings, conclusions of lower authority as are found just and proper, the writ petition came to be dismissed and the same deserves to be interferred with. At the same time, taking us through the merit of the appeal, it is contended that a statement made by deceased-tenant Shanabhai Ghanabhai Baraiya recorded on 14.10.1962 in proceedings under Section 32G that since the year 1947 deceased Shanabhai was not cultivating the suit land and, therefore, he was not a deemed purchaser and the suit land under Section 32 of the Act is of no consequence for deciding and determining the status as tenant and exercising power under the Act. It is further submitted that by virtue of operation of Section 32 of the BT and AL Act and such record qua suit land available would reveal deceased - Shanabhai was cultivating the land and in addition to the above, nature of inquiry envisaged in such a case by concerned Mamlatdar exercising power under a benevolent piece of Legislature enacted require cross-checking about occupancy of the suit land. In support of submissions, as above, learned counsel for the appellant has placed reliance on the decision reported in the case of Bhikubhai Bhima Gaidhane and Anr. v. Khandu Daji Pagar and Anr. [AIR 1973 Bombay 101] wherein proceedings under Section 32G were initiated and statement was made by tenant of similar nature about surrendering the suit land to the landlord and the learned Single Judge held that simply because the tenant makes a statement that he was no more in possession, the same cannot be treated as truth as he has given up his tenancy rights and cannot be accepted. The contention of landlord about surrendering tenancy rights by the tenant based on a statement came to be negated. Para 7 of the judgment in the case of Bhikubhai Bhima Gaidhane [supra] reads as under: "5. Now Section 32 of the Tenancy Act declares the tenant as a deemed purchaser of the land, which he holds as a tenant on 1st April 1957, the tiller's day. Every tenant is deemed to have purchased from his landlord on 1st of April, 1957 the land free of all encumbrances subsisting thereon on that day. The persons who becomes a deemed purchaser should be a permanent tenant and should cultivate the land personally and if he is not a permanent tenant, he should be the person who cultivates the land. Now we have other sections relating to the deemed purchase. Under Section 32G after the tillers' day the Tribunal shall publish a public notice in the prescribed form in each village calling upon the tenants, who under Section 32 are deemed to have purchased land and landlords of such lands and all other persons interested therein to appear before it on the dates specified in notice. The tribunal shall issue a notice individually to each such tenant, landlord and other person. Under sub-clause (2) the Tribunal shall record in the prescribed manner statement of the tenant ascertaining whether he is or is not willing to purchase land held by him as a tenant. If he does not appear then the Tribunal can declare that such tenant is not willing to purchase and that the purchase is ineffective. If the tenant is willing to purchase then every other step will have to be followed. Now, there were proceedings under Section 32G in respect of the land held by the respondent as a tenant. Because the respondent is said to have made a statement before the Agricultural Lands Tribunal, that he was neither in possession of the land on 141957, nor was he a tenant, the proceedings were dropped. Although there is no order of the Agricultural Lands Tribunal on record it is said that the said Tribunal also passed the order that the respondent was not a tenant and not in possession of the land and that therefore, the proceedings under Section 32G were ordered to be dropped". ;