State of Gujarat and 1 vs Bhikhaji Keshraji Thakor and 5

Honourable Mr. Justice J.B. Pardiwala

In this appeal, State of Gujarat seeks to challenge judgment and order dated 22.11.2010 passed by learned Single Judge in Special Civil Application No. 13673 of 2010, whereby, learned Single Judge allowed the writ petition preferred by respondents herein -original petitioners by quashing and setting aside order dated 10.05.2010 passed by District Collector.

Facts relevant for the purpose of deciding this appeal can be summarized as under :

2.1 Respondents herein -original petitioners are tenants of lands bearing Survey Nos. 33/12, 33/13 and 33/14 of village Nikol, Taluka City and District Ahmedabad since 1947-48. It is their case that the names of the predecessor in title have been shown in the village form No. 7 and 12. It appears that the predecessor in title of the original petitioners failed to apply for declaring them as purchaser under the Bombay Tenancy and Agricultural Lands Act, but, possession remained with them all throughout and they continued with the cultivation of the same.

Record reveals that original petitioners preferred an application to the Mamlatdar and ALT for necessary order holding the petitioners as tenants and deemed purchaser of the said land. The application was registered as Tenancy Case No. 247 of 2007 and Mamlatdar and ALT passed an order dated 04.08.2007 declaring the original petitioners as tenants and deemed purchasers of the said land. Original petitioners also paid the purchase price as per the order passed by Mamlatdar and ALT. Original petitioners had asked for fixation of the premium for putting the land into non-agriculture use. This request came to be turned down by saying that Mamlatdar and ALT by its order dated 04.08.2007 had granted the land in question u/s 32(G) on the condition that the original petitioners shall pay purchase price. The purchase price came to be paid only on 24.08.2007 and therefore, it was construed by the authorities that there was no continuous possession of 15 years of the land in question from the date of grant.

State of Gujarat relied upon a Circular dated 30.11.1987 in this regard. Relying on this circular, it was submitted before the learned Single Judge that the possession of the tenant is to be counted from the date of the award passed u/s 33(G)/32(O) and on the basis of that period, the amount of premium has to be determined.

Learned Single Judge took notice of the provisions of Section 32(G) and 32(O) of the Bombay Tenancy Act and more particularly the object and came to the conclusion that the circular relied upon by the State of Gujarat is not in consonance with the provisions of the Tenancy Act. In this background, learned Single Judge recorded findings in paragraphs 7 and 8 as under :

On the face of it, this circular is not inconsonance with the law on the point. The Mamlatdar and Agricultural Lands Tribunal passed an award u/s 32(G) or 32(O) on the basis of the possession of the person as a tenant on the land. That being so, the circular providing to overlook that period, which the person concerned was in possession, taking that very period into consideration, the award is passed u/s 32(G)/32(O) is contradictory in terms, rendering the circular to be absurd. Thus, the circular is contrary to the common sense and hence, it is required to be quashed and set aside.

The circular dated 30.11.1987 is quashed and set aside. The authorities are directed to decide the premium and communicate the same to the petitioners. The authorities are also directed to give sufficient time to the petitioners to pay the amount of premium. Once the premium is paid, necessary order be passed converting the lands of the petitioners from restricted tenure to old tenure. The very fact that the Mamlatdar and Agricultural Lands Tribunal passed an award in favor of the petitioners taking into consideration their possession since long i.e. from 1947-48, the reason for which the premium is not fixed cannot be accepted and cannot be allowed to stand. The petition is, therefore, allowed.

We are in complete agreement with the view taken by learned Single Judge in declaring the circular dated 30.11.1987 to be in absolute conflict with the provisions of the Tenancy Act more particularly Section 32(G) and 32(O). We do not find merit in any of the contentions raised by the appellants. We, therefore, dismiss this appeal with no order as to costs.