- (1.) The facts relevant to the controversy are as under : The appellant had taken on lease, about 55 years ago, an extent of 2 acres, 6 gunthas of agricultural lands situated in Akota village from Vishwas Rao. The Bombay Tenancy and Agricultural Lands Act, 67 of 1948 for short "the Act" applies to the lease. By operation of Sec. 32(1) the appellant became a deemed purchaser from tillers' day, i.e. April 1, 1957. Sec. 32G provides the procedure to determine purchase price. Since the landlord was insane, the right to purchase was statutorily deferred under Sec. 32F till date of its cessation or one year after death. Under Sec. 88(1)(b) of the Act certain areas abutting Baroda Municipality were notified as being reserved for non-agricultural or industrial purpose with effect from May 2, 1958. By another notification published in the Gujarat State Gazette dated July 2, 1964 certain land including those situated in Akote and of the appellant's leasehold lands were reserved for industrial purpose. Consequently Secs. 1 to 87 of the Act do not apply to the exempted area. While the landlord was continuing under disability, his son sold the land to the respondent under registered sale deed dated August 19, 1964. By another notification under Sec. 88(1)(b) published in the Gazette dated October 29, 1964, the Government restricted the operation of the exemption to the area originally notified on May 2, 1958, i.e. Secs. 1 to 87 do not apply to the lands in question. This notification was rescinded by further notification published in the Gazette dated August 23, 1976. The Bombay Tenancy and Agricultural Lands (Gujarat) Amendment Act, 36 of 1965, Secs. 18(1) and 18(2) thereof introduced two provisos to Sec. 88(1)(b) of the Act which was published in the Gazette on December 29, 1965 which are relevant for purpose of the case. Section 88(1)(b) with amendments reads thus : "(1) Save as otherwise provided in sub-sec. (2), nothing in the following provisions of this Act shall apply - (a) to lands belonging to, or held on lease from the Government; (aa) to lands held or leased by a local authority; (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development; Provided that if after a notification in respect of any area specified in the notification is issued under this clause, whether before or after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat) Amendment Act, 1965, the limits of the area so specified are enlarged on account of the addition of any other area thereto, then merely by reason of such addition, the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added, notwithstanding anything to the contrary contained in any judgment, or order of any Court, Tribunal or any other authority; Provided further that if any land in the area so added has been transferred or acquired after the issue of notification referred to in the first proviso but before the 29th day of October, 1964, such transfer or acquisition of land shall have effect as if it were made in an area to which this clause applies." Sub-sec. (2) is not relevant. Hence it is omitted.
(2.) Vishwas Rao the landlord died in September 1965. The appellant became entitled to purchase the land on and from August 19, 1966. He filed an application before Mamlatdar to fix the price. He fixed on enquiry (the price) at Rs. 4925.65 paise which was paid by the appellant.
(3.) In the enquiry, the respondent contended that he purchased the property from Vasant Rao, son of the landlord. By operation of second proviso to Sec. 88(1)(b) the lands stood exempted from operation of Secs. 1 to 87 of the Act. So the Mamlatdar had no jurisdiction to decide the price of the land. The appellant raised the contention that Vasant Rao has no right to sell during the life-time of the father, the Karta of the Hindu Joint Family. The sale is invalid and does not bind him. He acquired statutory right of deemed purchaser and its exemption under Sec. 88(1)(b) does not divest his statutory right. The Mamlatdar accepted the appellant's contention and allowed the petition. On appeal to the Collector and revision to the Revenue Tribunal the decision was reversed. The Division Bench of the High Court by order dated February 3, 1977 dismissed the writ petition. The appellant had leave of this Court by Art. 136. Thus this appeal.;