The petitioners have challenged an order dated 22nd August 1995 passed by the Mamlatdar & ALT, Anand as confirmed by the Special Secretary, Revenue by his order dated 6th January 2000. The petition arises in the following factual background: The petitioners were the original owners of the land. In such land, the name of Chandubhai Manibhai, as the heir of deceased Manibhai Jorabhai was shown as a tenant in the revenue records as a tenant since long. A tenancy case being Tenancy Case Nos.314 was, therefore, instituted. Since the tenant indicated his desire not to purchase the land in such tenancy case, an order was passed on 31st March 1964 declaring the sale as ineffective. The necessary entry to this effect was also made on 3rd June 1966 as Entry No.2473. Neither the present petitioners i.e. land owners nor said Shri Chandubhai, the tenant of the land, challenged this order of the Mamlatdar dated 31st March 1964. It also appears that for some reason yet another Tenancy Case No.333 was instituted since for some time the name of Shri Motibhai Jibhabhai was shown in the khed hakh in 7/12 Register of the land in question. In such case also, by order dated 20th July 1964 the sale was declared as ineffective. Necessary entry in this respect being entry No.2473 was also made on 3rd June 1966. Such order was once again neither challenged by the original land owners nor the tenant Motibhai Jibhabhai.
It appears that the RTS authorities issued instructions to the Mamlatdar for proceeding under Section 32PP of the Bombay Tenancy and Agricultural Lands Act, 1948 ('Act', for short). In such proceedings, which were registered as Tenancy Case No.1096 of 1992, the Mamlatdar, after issuing notices to the tenants, passed the impugned order on 22nd August 1995. In such order he held that he did not have the power to initiate suo motu proceedings to initiate the proceedings under Section 32PP of the Act, the Government had fixed the timelimit of 31st December 1986 for filing the applications under Section 32PP and 32PPP of the Act. Within such time, no application was filed by anybody. He was, therefore, of the opinion that the enquiry under Section 32PP of the Act should be closed. While doing so, he provided that since no such application was filed by the tenants, the land should be treated to have been vested in the Government. Ultimately, therefore, while dropping the enquiry under Section 32PP of the Act, he provided that if the owner is in possession of the land, he should be evicted. Curiously, he also provided that, however, if the tenant is in possession of the land, his possession should be continued.
Aggrieved by such order of the Mamlatdar & ALT, the petitioners approached the Special Secretary. The Special Secretary dismissed the revision observing that previously twice the tenany proceedings with respect to the suit land came to be dropped declaring that the sale is ineffective. Against such order no appeal was preferred.
These orders the petitioners have challenged in the present petition. Learned counsel, Shir Nalin Thakkar for the petitioners vehemently contended that the Mamlatdar had no power to initiate enquiry under Section 32PP of the Act. He further submitted that neither Chandubhai nor Motibhai was a tenant of the land, and they belong to the same family of the petitioners and were joint owners. He drew my attention to a communication dated 11th November 1990 issued by the Mamlatdar & ALT in which the Mamlatdar shown is inability to supply a copy of the order dated 20th July 1964 since the record was not available. He submitted that when the copy was not supplied, such order should be ignored. In support of his contention, he relied upon the decision of the Apex Court in the case of Union of India & Another v. Ex. Major Sudershan Gupta, (2009) 6 SCC 298. Counsel has also relied upon the depositions of Ranchhodbhai Nanabhai, petitioner No.2 herein, Chandubhai Manibhai, son of Manibhai, respondent No.2 herein recorded before the Mamlatdar during the proceedings under Section 32PP of the Act to contend that there was no tenant on the land at any point of time.
On the other hand, learned AGP, Ms Shruti Pathak opposed the petition contending that the Mamlatdar passed an order, which does not suffer from any illegality, the Special Secretary has examined all the aspects in the revision application and concurrent findings do not call for any interference.
From the record it emerges that with respect to the suit land tenancy proceedings were initiated way back in the year 1960s on the strength of the entries made in the revenue record. During such proceedings, the tenants stated before the Mamlatdar that they were not interested in purchasing the land. Thereupon the order was passed declaring the sale was ineffective. Under the provisions of the said Act, therefore, the land would vest in the Government. Despite which, subsequently, the statutory provisions were added in the form of Section 32PP and 32PPP providing for an additional opportunity to the tenant to purchase the land by approaching the Mamlatdar & ALT. The orders passed by the Mamlatdar declaring the sale ineffective achieved finality. Neither the landowners nor the tenant challenged such orders. Only when the Mamlatdar in the year 1995 on a reference by by the RTS authorities initiated the enquiry under Section 32PP of the Act that the present petitioners and tenants jointly stated that there was no tenancy on the land at any point of time. The Mamlatdar dropped the proceedings holding that he had no power to suo motu initiate enquiry under Section 32PP of the Act. Even learned counsel for the petitioners agreed that the Mamlatdar has no power to initiate suo motu enquiry under the Act. Be that as it may, in the collateral proceedings under Section 32PP of the Act it was not open either for the petitioners or the tenants to contend that there was no tenant on the land. Such issue had achieved finality when previously the Mamlatdar recorded that the tenant came forward to state that he is not interested in purchasing the land. More than 32 years later the petitioner cannot be permitted to build a new case that too in collateral proceedings. Section 32PP of the Act, as noticed above, granted additional opportunity to a tenant to apply to the Mamlatdar & ALT to purchase the land even though previously he has declined to do so due to which the sale was declared as ineffective. In such proceedings the landlord could not have contended that there was no tenancy at all.
The contention that de hors the evidence on record the Mamlatdar held to the contrary is totally out of context. Such evidence, if at all was sought to be produced before the Mamlatdar in the year 1995 in the proceedings under Section 32PP of the Act, the entire scope and enquiry of 32PP proceedings would be vastly different from that to be made under Section 32G of the Act. Further, such issue had achieved finality way back in the year 1964.
Additionally, I find that the revenue entries reflected such order vide which Mamlatdar declared the sale as ineffective. Such entries were made way back in the year 1966. The petitioners cannot claim ignorance of such entries.
Reliance on the decision of the Apex Court in the case of Ex. Major Sudershan Gupta (supra) is of no avail. In the present case the petitioners applied for copy of the order dated 20th July 1964 in the year 1998 i.e. 34 years later. If for want of availability of record after such a long time the Mamlatdar could not supply the copy, the petitioners cannot wish away the order, which is reflected from the record. In the case of Ex. Major Sudershan Gupta (supra) the facts were that the official records could not be produced. The Government took the plea that the same were destroyed within seven years as per the instructions even though the matter was sub judice before the Court. The facts are very different from the present case.
In the result, the petition fails. Rule is discharged. Interim relief, if any, stands vacated.
(Akil Kureshi, J.) *mohd