Jivraj Jutha vs The State of Gujarat and Others

these two petitions under Art. 226 of the Constitution of India raise a short but an interesting question regarding right of a tenant-deemed

purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, (here in after called ''the Tenancy Act'') to be offered,

for purchase u/s 32P(2)(c) that very portion of land held by him asm4enant on the tiles day, the deemed purchase of which had become

inoperative under the provisions of section 32E of the Tenancy Act.

In order to highlight the question involve in these petitions, a few relevant facts may be noted at the outset. The petitioners in both these petitions

were lawful tenants of certain agricultural lands situated in village Dungri-Mithapur in Dhari taluka of Amelia district. Under the provisions of

section 32 of the Tenancy Act, they became deemed purchasers of these lands. In proceedings u/s 32G of the Tenancy Act, for fixation of

purchase price in favour of the petitioners, it was found that both the petitioners were holding lands in excess of the ceiling area as prescribed by

section 2(2D) read with section 5 of the Tenancy Act. The ceiling area limit for agricultural land was 48 acres of jirayat land. In case of both the

petitioners, it was found that their holding would exceed 48 acres if they were permitted to purchase all the lands held by them as tenants under the

''Tenancy Act. It was held by the Mamlatdar and ALT that the petitioner in special civil application No. 1773 of 1977 was holding excess land

admeasuring 3 acres - 27 gunthas while the petitioner in special civil application No. 316 of 1978 was holding excess land admeasuring 20 acres -

38 gunthas. These excess lands could not be sold to the petitioners as deemed purchasers on account of the combined operation of section 32 and

section 32E of the Tenancy Act. Consequently, these excess lands which could not be purchased by the petitioners as deemed purchasers which

had to be disposed of by the Collector in the manner specified in clause'' (c) of sub-section (2) of section 32P. The petitioners contended that the

extent of ceiling area had undergone a change in view of the latter notification issued by the State of Gujarat u/s 7 of the Tenancy Act by which the

ceiling was raised. That contention was repelled by the Deputy Collector on the ground that the subsequent notification issued u/s 7 had no effect

on the situation that prevailed on 1-4-1957 on which day, the petitioners were, held to have become deemed purchasers and 1985 consequently,

the excess land computed by the Mamlatdar and ALT in case of each of the petitioners was required to be disposed of u/s 32(2)(c) as enjoined by

section 32E of the Tenancy Act. This decision of the competent authority has become final as this Court ultimately confirmed it. It is in these

circumstances that the Mamlatdar, Dhari acting as Collector initiated proceedings u/s 32P(2)(c) of the Tenancy Act for terminating enhances of the

petitioners and for summarily evicting them and for disposal of their excess lands as per the said Provisions. Notification to that effect was issued

by the Mamlatdar Dhari u/s 32P(2)(c) on 1-4-1977. That notification is at annexure F to special civil application No. 1773 of 1977 and annexure''

to special civil application No.316 of 1978 . The petitioners contend that as per the provisions of section 32P(2)(c)(ai), they are entitled to be

given priority for the purpose of purchasing these very lands which are sought to be disposed of u/s 32P(2)(c) and as no offer was made to them in

the first instance, even though they stood first in the priority lies as per the aforesaid provision, the notification dated 1-4-1977 as issued by the

Mamlatdar exercising powers of the Collector is null and void and consequently, the petitioners cannot be summarily evicted from the lands till the

question of their right in, priority to purchase these lands is decided by the authority acting u/s 32P(2)(c). The respondents acting as competent

authorities under the Act did not accept the petitioners'' aforesaid contention and that is how the petitioners have landed in this court.

X X X X X X X

X X X X X X In order to resolve this question, it is necessary to have a look at a few relevant provisions of the Tenancy Act. Section 2(2D)

defines ''ceiling area'' to mean ""in relation to land held by a person whether as an owner or tenant or partly as owner and partly as tenant the area

of land fixed as ceiling area u/s 5 or 7"". Section 5 of the Tenancy Act provides -

(1) For the purposes of this Act, the ceiling area of lands shall be -

(a) 48 acres of jirayat land, or land or paddy or rice land, or

(c).12 acres perennially irrigated land"".

In the present case, it an admitted position that both the petitioners held agricultural lands, as tenants on the tillers day which were in excess of 48

acres of jirayat land which was the permissible ceiling area of land which could be held by the petitioners under the Act. It is not necessary to refer

to section 7 as the subsequent notification enlarging the ceiling limit u/s 7 has been held by this court in earlier proceedings to be of no avail to the

petitioners. The next relevant section is section 32 which lays down that

(1) On the first day of April 1957 (hereinafter referred to as.'' the tillers'' day) every tenant shall, subject to the other provisions of this section and

the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the

said day, the land held by him as tenant... The aforesaid statutory right of purchase as available to both the petitioners in connection with the lands

held by them as tenants on the tillers'' day had to be exercised in the light of other provisions of section 32 as well as provisions of the succeeding

sections. Section 32A is one such succeeding section, which reads as under: -

32A. A tenant shall be deemed to have purchased land u/s 32.

(1) In the case of a tenant who does not hold any land as owner but holds land as tenant in excess of the ceiling area, up to the ceiling area''.

(2) In the case of a tenant who holds land as owner below the ceiling area, such part of the land only as well raise his holding to the extent of the

ceiling area"".

Section 32B is another succeeding section which is also required to be noted in extenso. It reads as under: -

32B. If a tenant holds land partly as owner and partly as tenant but. The area of the land held, as owner is equal to or exceeds the ceiling area. He

shall not be deemed to have purchased the land held by him as a tenant rider section 32"".

The follows section 32E, which reads as under: -

32E. The balance of any land after the purchase by the tenant u/s 32 shall be disposed by sale by Collector in the manner specified in clause (c) of

sub-section (2) of section 32P, and thereupon the provision of sub-section (5) of section 32P shall apply to such sale"".

On a combined reading of sections 32 32A 32B and 32E, it appears clear that, if a tenant on the tillers'' day holds land in excess of the permissible

ceiling area, the excess land held by him cannot be made the subject matter of statutory purchase by him and this excess land will have to be

disposed of by sale by the Collector in the manner provided by section 32P(2)(c). In the present case, admittedly, both the petitioners did hold

land more than 48 acres which was the permissible ceiling area and the concerned excess lands, therefore, fell at the disposal of the Collector,

There is no dispute on this point. Admittedly, the stage of disposal of excess lands u/s 32P(2)(c) was squarely reached in the case of both the

petitioners. Relevant provisions of the section 32P are now required to be noted.

32P. (1) Where the purchase of any land by tenant u/s 32 becomes ineffective under the foregoing provisions of this subchapter or where the

tenant fails to exercise the right to purchase land u/s 431D within the period specified in that section, the Collector may suo motu or on an

application made in this behalf and after holding a formal inquiry direct that the land shall) be disposed of in the manner provided in sub-section (2).

(2) Such direction shall, subject to the provisions of sub-section (2AA) and (2A), provide -

(a) That the tenancy in respect of the land shall be terminated and the tenant be summarily evicted;

(b) X X X X

(c) That the entire land or such portion thereof as the case may be notwithstanding that it is a fragment shall, subject to the terms and conditions as

may be specified in the direction, be disposed of by sale to person in the following order of priority (hereinafter called ""the priority list"") :-

(ai) the tenant whose tenancy in respect of that land is terminated if such tenant is willing to accept the offer of sale, provided the occasion for the

issue of such direction has .not arisen by reason of an act of collusion. Between such tenant and the landlord;

(i) a co-operative farming society the members of which are agricultural laborers, landless persons or small holders or a combination of such

persons;

(ii) Agricultural labourers-,

(iii) Landless persons;

(iv) Small holders;

(v) a co-operative farming society of agriculturists (other than small holders) who hold either as owner or tenant or partly as owner and partly as

tenant, landless in area than an economic holding and who are artisans.

(vi) An agriculturist (other than a small holder) who holds either as owner or tenant or partly as owner and partly as tenant, landless in area than an

economic holding and who is an artisan;

(vii) Any other co-operative farming society;

(viii) Any agriculturist who holds either as owner or tenant or partly as owner and partly as tenant land larger in area than an economic holding but

less in area than the ceiling area.

(ix) Any person not being an agriculturist, who intends to take to the profession of agriculture .......

Section 32P(2-AA) reads as under: -

Where in any case the direction under sub-section (2) provides that the land in respect of which the tenancy is terminated shall be disposed of by

sale to the tenant referred to in sub-section (ai) of clause (c) of sub-section (2), the tenant shall be liable to be evicted only if the land or, as the

case may be, the portion thereof could not be disposed of by sale to him"".

Section 32P(5) reads as under: -

Where any land is sold under subsection (2), the Collector shall determine the price of the land in accordance with the provisions of section 63A

and the price so determined shall be payable by annual installments not exceeding six with simple interest at the rate of 4 1/2% per annurn as the

Collector may determine and the price of the land recovered from the purchaser shall, subject to the provisions'' of section 32Q, be paid to the

owner thereof.

(6) On the payment of the last installment of the price, together with the interest due, the Collector shall issue a certificate of purchase in the

prescribed form to the purchaser in respect of the land. Such certificate shall be conclusive evidence of purchase. ""It is obvious that excess land

held by the petitioners which could not be sold to them under the provisions of section 32 of the Tenancy Act had to be disposed of by the

Collector by firstly terminating tenancies of the petitioners qua these lands and by summarily evicting them and also deciding to sell off this excess

land in the order of priority as laid down by section 32P(2)(c) itself. As enjoined by the aforesaid provisions of section 32P, it becomes clear that

even though the concerned tenant who has not been able to purchase the given land on the tillers'' day as it was in excess of the ceiling area, he has

again to be given a. locus poenitentiae by the scheme of statutory pre-emption to get a fresh chance to purchase the land of course through the

intervention of the State authorities provided he is prepared to accept the same. Section 32P(2)(c) itself lays down the order of priority. Clause (ai)

occurs first in the list of priority. Consequently, the concerned tenant whose tenancy has been terminated is again given a special right to purchase

the very same land in priority to others and so long as his right to purchase in priority is not considered fully and proceedings retraining to the same

are not completed as enjoined by section 32P(2AA) such tenant cannot even be summarily evicted from the concerned land. A combined

operation of various provisions of section 32P(2) clearly indicates that even if tenancy of a tenant is to be terminated and he is to be summarily

evicted, before actual summary eviction takes place, section 32P(2AA) read with section 32P(2)(c)(ai) interjects itself and impedes process of

summary eviction of such tenant. In short, the legislature has given a locus poenitentiae to such tenant to get back the land, which he could not

purchase as a statutory deemed purchaser under the scheme of S. 32 of the Tenancy Act. It may prima facie took incongruous that a tenant who

cannot purchase the given land as it is in excess of his ceiling holding can all the same to the permitted to repurchase the same through the

machinery of section 32P(2)(c) in priority as it would again swell his ceiling limit and the purchased land would again go out of his hands. Thus such

an exercise would be an exercise in futility and would result in an absurd situation of moving in a circle. At first blush, such an eventuality can be

apprehended. But a closer scrutiny of the scheme of the Tenancy Act does not reveal such an absurdity. It may be noted that if a tenant holds any

land in excess of the ceiling area as enjoined by the Tenancy Act, the excess land will not be sold to him u/s 32 and will be disposed of u/s 32P(2)

(c). If such excess land is again sold to him under the scheme of priority as per section 32P(2)(c)(ai) he does not purchase this land as a deemed

purchaser u/s 32, but he purchases it through intervention of the Collector exercising statutory power u/s 32P(2)(c), and once he purchases this

land, he purchases the same not as a deemed purchaser but as a priority holder who has been given a statutory pre-emption right u/s 32P(2)(c).

Purchase in his favour is completed as per provisions of section 32P(5) and on payment of installment of purchase price fixed; the Collector issues

him the certificate to purchase u/s 32P(6). This scheme is entirely different from the scheme of section 32 read with section 32G and section 32M

of the Tenancy Act. A deemed purchaser gets the purchase price fixed u/s 32G and on payment of all installments of purchase price, he is issued a

certificate u/s 32M. But so far as the tenant who is outside the scheme of section 32 proceedings qua a given piece of excess land is concerned, he

gets a locus poenitentiae to purchase this very same land not u/s 32 but under the provisions of section 32P(2)(c) itself. That is entirely a different

statutory right available to such tenant. The legislature in its wisdom has thought it fit to confer on such tenant this additional right. It cannot be

nullified on the ground that such a tenant could not purchase this very land u/s 32 read with section 32G of the Tenancy ''Act. That may be I so.

Still if the very statute by any other provisions gives an-additional right to such a tenant, he is entitled to the exercise thereof Still the question

remains as to whether the aforesaid exercise is prone to result in moving in a circle and whether the concerned land can effectively remain with the

tenant when it would once again make the holding of the tenant to exceed the ceiling limit. In order to resolve this conundrum, it is necessary to

look at old section 34 of the Tenancy Act which stood deleted by Gujarat Act No. 27 of 1961. Under, said section 34, it was provided that.-

(I) Subject to the provisions of section 35, it shall not be lawful, with effect from the appointed day, for any person to hold, whether as owner or

tenant or partly as owner and partly as tenant, land in excess of the ceiling area.

If this section had remained on the statute book, then obviously exercise u/s 32P(2)(q) by offering the excess land to the same tenant which he

could not hold as a deemed purchaser would have failed, as Section 34 of the same Act would have nullified the effect of Section 32P(2)(c)(ai)

and both the provisions would have been in head on conflict and w6uld have remained irreconcilable. But this section 34 has been deleted by the

legislature. That has been done on account of the fact that Gujarat Agricultural Land Ceiling Act, 1960 was brought on the statute book. It is this

Act, which holds the field now. As per section 4 of the Ceiling Act, the lands in local areas have been classified as per schedules annexed to the

said Act. As per section 6 of the Ceiling Act, it has been provided as under: -

(1) Notwithstanding anything contained in any law for the time being in force or in any agreement, usage or decree or order of a court, with effect

from the appointed day no person shall, subject to the provisions of subsections (2), (3), (3A) and (3B) be entitled to hold whether as owner or

tenant or partly as owner and partly as tenant land in excess of the ceiling area"".

It is, therefore, obvious that if the concerned tenant who holds land more than the ceiling area as defined by the Tenancy Act is offered excess land

on priority basis u/s 32P(2)(c) and if he exercises the option , and purchases the same, his holding of land would get swelled because of this

additional purchase. But that additional holding would be subject not to the provisions of the Ceiling limit as enjoined by the Tenancy Act which

after the deletion of section 34 does not impose any such limit, but would be subject to the ceiling limit as laid down by the Ceiling Act. It may be

noted that for the lands in question which are situated in Dhari taluka of Amelia district, ceiling as per the Tenancy Act is 48 acres of jirayat land as

seen above. But so far as the Ceiling Act is concerned, the lands situated in Dhari. Taluka of Amelia district are classified as local area failing under

Class F as seen from part VI of Schedule II, and as per Schedule I to the Ceiling Act, ceiling limit for dry crop lands of class F is shown to be 96

acres of such land. It is at once clear that scheme for compensation of excess land under the Ceiling Act is entirely different, procedure for taking

possession of such excess land is also different and the said scheme in no way infringes upon any of the provisions of the Tenancy Act. It is

pertinent to note that the scheme of statutory priority given to the tenant u/s 32P(2)(c)(ai) was enacted by GuJ Act 5 of 1973 by section 12(l)(c)(ii)

thereof. It had nothing to do with old section 34 of the Tenancy Act, which was out of the harm''s way since 1961. Consequently, giving effect to

the statutory provisions of section 32P(2)(c)(ai) does not in any way conflict with any of the other provisions of the Tenancy Act. Under the

circumstances, it cannot b '' e said that by providing locus poenitentiae to the tenants to purchase land u/s 32P(2)(c)(ai) which could not be

purchased by them as deemed purchasers u/s 32G, any absurd or unworkable situation is likely to arise or that operation of section 32P(2)(c)

would in any way conflict with the earlier provisions of Section 32 read with sections 32A and 32G of the Tenancy Act. Both these sets of

provisions can operate in their own fields and can yield different results as discussed above. There is no conflict or collision between these

provisions as indicated above. Consequences, which follow the operation of section 32, read with sees. 32A 32B and 32E would st6p at the stage

when the concerned -excess lands are put at the disposal of the Collector, Thereafter, it is the independent scheme of section 32P(2)(c) which

starts operating of its own and under that scheme, the tenant whose tenancy is terminated is again given a locus poenitentiae to walk in if he wants

to purchase the said lands subject of course to the statutory requirements of section 32P(2)(c)(ai). But if these requirements are fulfilled, there is no

reason why such a tenant should be excluded from the scheme of priority or can ever be by-passed when the legislature mandates otherwise.

Excluding such tenant from the priority list will be going contrary to the express provisions of section 32P(2)(c)(ai). The Mamlatdar acting as

Collector has issued the impugned notification dated 1-4-1977 totally by passing the statutory right available to the petitioners u/s 32P(2)(c)(ai)

and hence, this impugned notification is ultra verse the said provision and cannot be sustained. The reasoning adopted by the respondents for by-

passing the petitioners'' claim for being offered the lands for purchase is to the effect that these tenants cannot become deemed purchasers of lands

on 1-4-1957 because of operation of section 32 read with sees. 32A and 32E. They have ceased to be the tenants of these lands and, therefore,

they cannot again walk in under the scheme of priority. The said stand flies in the face of the legislative mandate, is enshrined in section 32P(2)(c)

(ai). When such an express legislative mandate is provided, the claim of the concerned tenants cannot be bypassed and so long as that scheme is

not fully implemented, no summary eviction of such tenants can be ordered from the concerned lands as enjoined by section 32P(2AA).

Consequently, the impugned notification dated 1-4 -1977 and the orders passed by the Mamlatdar acting as Collector directing summary eviction

of the petitioners are found to be ex facie ultra verse and illegal and cannot be sustained.

X X X X X X X X X.

Petitions allowed.