Fulabhai Dadabhai Parmar

1. As in both the matters, common question arise for consideration, they are being considered simultaneously.

2. SCA No. 344/01 has been preferred by the petitioner landlord for challenging the legality and validity of the order passed by the Mamlatdar & ALT and its confirmation thereof by the Deputy Collector and the Revenue Tribunal, whereby in exercise of the power under section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act”), it is held that the legal heirs of tenant Vaghji Thula would be entitled to purchase the land. SCA No.621/01 has been preferred for challenging the legality and validity of the order passed by Mamlatdar & ALT and its confirmation thereof by the Deputy Collector as well as by Revenue Tribunal whereby, similar order has been passed in favour of the tenant by the Mamlatdar in exercise of the power under section 32(1B) of the Act.

3. The common facts are that in 1985, proceedings have been initiated by the Mamlatdar under section 32(1B) of the Act on the ground that the lawful tenant was dispossessed and therefore, the appropriate orders should be passed against him The common aspects in both the matters are that the power has been exercised in the year 1985 for the first time after section 32(1B) of the Act came into force in the statue book w.e.f., 03.03.1973. Section 32(1B) reads as under:

“(1B) Where a tenant who was in possession of land on the appointed day and who, on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in section 29 or any other provision of this Act, is not in possession of such land or any part thereof is in the possession of the landlord or his successor­in­interest on the said date and such land or part thereof is not put to a non­agricultural use on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section 29 or any provision of this Act either suo motu or on an application of the tenant made within the prescribed period, hold an inquiry and direct that such land or as the case be, part thereof shall be taken from the possession of the landlord or, as the case may be, his successor in interest, and shall be restored to the tenant; and thereafter, the provisions of this section and sections 32A to 32R (both inclusive) shall, so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on which such land or, as the case may be, part thereof is restored to him.”

4. Since we are not required to examine the aspects of proviso, the same need not be reproduced. Perusal of section 32(1B) of the Act shows that the power can be exercised by the Mamlatdar either suo motu or upon an application of the tenant made within the prescribed period for holding inquiry. The legislature speaks for suo motu power or the exercise of the power upon the application. Rule 15­A of the Bombay Tenancy & Agricultural Lands Rules, 1956, which has come into force is relevant for the purpose of this petition and which reads as under:

“15­A. Period withing which application under sub­section (1­B) of sec. 32 shall be made.­ An application under sub­section (1­ B) of sec. 32 by a tenant specified in that sub­section shall be made within a period of one year from the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972.”

The aforesaid shows that the application under sub­section (1B) of section 32 is required to be made by the tenant within a year from coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972. As observed earlier by the aforesaid amendment act of 1972, section 32(1B) has been inserted and the specified date is 03.03.1973. Therefore, such application is required to be made within one year therefrom and such period would be over on 02.03.1974.

5. It is an admitted position that the tenant­ respondent herein has not made an application within the prescribed period. Therefore, if the tenant is to assert the right over the land by virtue of the provisions of section 32(1B) of the Act, such period was over long back and as per the scheme of the Act he could not have invoked the jurisdiction of Mamlatdar under section 32(1B) of the Act in the year 1985.

6. However, Mr. A.J. Patel, learned counsel appearing for the respondent contended that the Mamlatdar could have exercised the suo motu power under section 32(1B) of the Act and in his submission, no time limit has been provided under section 32(1B) for exercise of the suo motu power by Mamlatdar and therefore, in his submission, the Mamlatdar can exercise the power any time after the expiry of the period of one year and he further submitted that the aforesaid aspect is already considered by this Court in the case of Rasulmiya Rehmanmiya v. Patel Lalbhai Shankerbhai reported at 1983 (1) GLR 714 wherein the Court observed that for exercise of the suo motu power, the time limit of one year would not be applicable, of course, he fairly conceded that this Court has observed that such power has to be exercised within reasonable time.

7. In my view, even if the principles of applicability of reasonable time are to be considered, as such, the period of 12 years in normal circumstances could not be said as reasonable for exercise of the suo motu power. At the same time , it is true that the span of reasonable period would vary from facts to facts and there cannot be any straitjacket formula for the prescription of such reasonable period. No evidence is led by any party to the proceedings on the said aspects. In the order of Mamlatdar and ALT, it does appear that there were some inspection made of RTS record and thereafter, the proceedings were initiated. No details are available on record about the date on which the inspection had taken place and the date on which proceedings were initiated under section 32(1B) of the Act.

8. It also appears that whether such inspection of RTS record had taken place earlier by the revenue authority or not has also not come on record. If the inspection of RTS record had already taken place earlier, and thereafter, if the proceedings were not initiated, then such can also be said as one of the circumstance that the suo motu power has not been exercised within reasonable time. As none of the authority has considered the said aspects, such aspects being the root of the matter, it would be just and proper to remand the matter to the first authority by allowing the parties to lead the evidence on the aspects of reasonable period for exercise of the power after 03.03.1973 and the authority should decide the said question. If the authority finds that there was delay in exercise of the power on the part of the mamlatdar or the revenue authority, then under such circumstances, initiation of the action under section 32(1B) could be said as barred. Since the question of reasonable period vary from facts to facts and no evidence has come on record as no parties were permitted to lead evidence on the said aspects, I leave the matter at that stage without observing further leaving the appropriate authority to decide the said question in accordance with law.

9. In my view, the question of time limit in exercise of the suo motu power under section 32(1B) after a period of 12 years was one of the important and vital aspect and the lower authority could not have ignored the same more particularly when the statute provides for making of application by the tenant within a period of one year and the said period had expired long back, i.e., on 02.03.1974. Whereas the action in the present case has been initiated after 12 years or in any case 11 years therefrom.

10. In view of the aforesaid observations and discussions, the impugned orders passed by the Mamlatdar and its confirmation thereof by the Deputy Collector and Revenue Tribunal are quashed and set aside with the further direction that the matter shall stand restored to the Mamlatdar and ALT. The Mamlatdar & ALT shall examine the aspects as to whether suo motu power could be said as exercised within reasonable period or not. Thereafter, the Mamlatdar & ALT shall pass the appropriate order keeping in view the provisions of section 32(1B) read with the limitation provided therein. The aforesaid exercise shall be completed as early as possible preferably within a period of one year from the receipt of the order of this Court.

11. The petitions are allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.

BIJOY (JAYANT PATEL, J.)