VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT & Ors.

affirmed relied on relied on relied on relied on [2004] 2 Suppl. SCR 825 referred to [2012] 7 SCR 1148 [2015] 5 SCR 365 relied on relied on [1997] 2 Suppl. SCR 305 relied on [2003] 2 SCR 139 [2008] 12 SCR 1083 [2011] 3 SCR 1 relied on relied on followed C D E Para 12(D) Para 12(D) Para 12(E) Para 15 (A) Para 15 (B) Para 1 Para 17 Para 17 Para 1 Para 18 (b) Para 22 Para 28 Para 29 Para 30 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2573 of 2020. From the Judgment and Order dated 17.03.2009 of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 25058 of 2006. With Civil Appeal Nos. 2574, 2575, 2576, 2577, 2578, 2579, 2581, 2583, F 2584 of 2020. Sanjay Parikh, Sr. Adv., Ms. K. V. Bharathi Upadhyaya, Raghavendra S. Srivatsa, Pai Amit, Rahat Bansal, Aniruddha P. Mayee, A. Rajarajan, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Alok Kumar, Ms. Bhavna Sarkar, Ms. Deepa Gorasia, Neerav Thakkar, Ms. Bina Madhavan, Katubadi Ismail, M/s. Lawyer S Knit & Co, P. S. Sudheer, Rishi Maheshwari, Ms. Mayuri Nayyar Chawla, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose, Divyesh Sejpal, S. Hariharan, Ms. Jaikriti S. Jadeja, Vikash Singh, Somesh Chandra Jha, Anand Darshan, Rahul Narang, Mahesh Agarwal, Abhinav Agrawal, Nishant Roa, E. C. Agrawala, Rajiv Kumar, Krishna M. Singh, Sanjeev Gupta, Sandeep Kumar, Rameshwar Prasad Goyal, Nikhil Goel, Dushyant Sarna G H VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. 907 (for A. Venayagam Balan), Ms. Hemantika Wahi, Rahul Gupta, Advs. for the appearing parties. The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

#1. Leave granted.

#2. These Appeals arise out of the common judgment and order dated 17.03.2009 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No.25058 of 2006 and all other connected matters while answering the questions referred to it by a Single Judge of the High Court. The questions that arose for consideration and the circumstances in which the matters were referred to it were set out by the Division Bench as under:-. “We are called upon to decide as to whether Section 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (for short ‘the Bombay Tenancy Act’) debars an agriculturist from parting with his agricultural land to a non-agriculturist through a “Will” so also, whether Section 43(1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Sections 17B, 32, 32F. 321. 320, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition. Learned Single Judges of this Court have taken a consistent view that such transfer of property through testamentary disposition would not violate Section 43 or 63 of the Tenancy Act, Justice J.B. Mehta in the case of Manharlal Ratanlal @ Radmansinh Chausinh v. Taiyabali Jaji Mohamed & others (1967-68 (Vol.5) GLT 199) while interpreting Section 43(1) of the Tenancy Act took the view that the expression ‘transfer’ which is used in Section 43(1) of the Tenancy Act must be interpreted in light of the Transfer of Property Act viz. the transfer by way of act of parties. Learned Judge took the view that, if the Legislature wanted to include a transfer by operation of law as to include succession, insolvency, inheritance, etc. or sales by public auction, specific provision would have been made to that effect. Learned Judge held all the specific categories which are mentioned are all of transfers by act of parties, bequest by Will cannot be included in the scope of the term ‘gift’ A B C D E F G H 908 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H or ‘assignment’. Justice Rajesh Balia in Ghanshyambhai Nabheram v. State of Gujarat and others (1999 (2) GLR 1061) while interpreting Section 63 of the Tenancy Act took a view that just like, a non-agriculturist be not deprived of his inheritance, a legatee under a Will, can also be a non-agriculturist, hence, there is no bar in succeeding the property through testamentary disposition. Learned Judge held that Revenue Laws dealing with agricultural lands have not made the land uninheritable and they also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well defined share of the estate of deceased vesting in them individually. Justice Rajesh Balia again in Pravinbhai Bhailalbhai Gor v. Rajkumar Gupta, collector, Vadodara (1999(1) GLR 440) while interpreting Section 43 and 63 of the Tenancy Act took the view that both provisions clearly go to show that they refer only to transaction or transfer or agreement to transfer of land or any interest therein which are inter vivos and not to vesting of such rights in anyone as a result of transmission or as a result of succession on death of holder and the provisions do not affect the operation of law of inheritance. Appeal filed against the above judgment was, however, dismissed in State of Gujarat v. P.B. Gor (2000 (3) GLR 2168). Justice K.A. Puj also took identical view in Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat (2005 (1) GLR 575) and Gopiraj Dedraj Agrawal (Gopiram tudraj Agrawal) v. State of Gujarat (2004 (1) GLR 237). Learned Judge also made reference to the Circular dated 13.02.1989 issued by the State Government and took a view that that Section 43 as well as Section 63 of the Tenancy Act would not debar transfer of property by testamentary disposition. Justice R.K. Abichandani also took the same view in Babubhai Mervanbhai Patel v. State of Gujarat 2005 (1) GLH (UJ) 3. Learned Single Judge Justice Jayant Patel expressed some doubts about the views expressed in the above-referred judgments and felt that the matter requires re-consideration in light of the decisions rendered by the Apex Court in Sangappa Kalyanappa Bangi (dead) through LR (AIR 1998 SC 3229 = (1998) 7 SCC 294 Rajendra Babu J. and Jayamma v. Maria Bai and another (2004) 7 SCC 459 Sinha, J.) and hence these matters have been placed before us.” VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 909

#3. Sections 43 and Section 63 of the Act1 are quoted here for A ready reference:- “43. Restriction on transfers of land purchased or sold under this Act: (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32I, 32O2, 32U, 43-1D or 88E or sold to any person under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant: Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force: Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to such land or interest therein purchased by the tenant or the person. (1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government. (1AA) Notwithstanding anything contained in sub-section (1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1983, 1 The Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to State of Gujarat. 2 The words ‘32O’ were deleted by Guj. Act No.10 of 2009 B C D E F G H 910 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H the Agriculturists’ Loans Act, 1984, or the Bombay Non-agriculturists’ Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or co-operative society, and without prejudice to any other remedy open to the State Government, bank or co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan. Explanation. – For the purposes of this sub-section, “bank” means – (a) the State Bank of India constituted under the State Bank of India Act,1955; (b) any subsidiary bank as defined in clause (k) of Section 2 of the State Bank of India (Subsidiary Banks) Act, 1959; (c) any correspondent new bank as defined in clause (d) of Section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (d) the Agricultural Refinance and Development corporation, established under the Agricultural Refinance and Development Corporation Act, 1963. (1B) Nothing in sub-section (1) or (1AA) shall apply to land purchased under Section 32, 32F, or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transferable right in the tenancy of the land. (1C) The land to which sub-section (1) applies and for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 for use of such land for a bonafide industrial purpose may, notwithstanding anything contained in sub-section (1) of this section, be sold without the previous sanction of the Collector under sub-section (1) but subject to payment of such amount as may be determined by the State Government under sub-section (1). VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 911 (2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of sub-section (1) shall be invalid.

#63. Transfers to non-agriculturists barred. (1) Save as provided in this Act:- (a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgage, or (c) no agreement made by an instrument in writing for the sale, gift, exchange, lese or mortgage of any land or interest therein, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer: Provided that the Collector or an officer authorised by the State government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement on such conditions as may be prescribed. Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees. (1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub-section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein. (2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, A B C D E F G H 912 SUPREME COURT REPORTS [2020] 5 S.C.R. exchange or lease, of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan or a person carrying on any allied pursuit. (3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors’ Relief Act, 1947. (4) Nothing in Section 63A shall apply to any sale made under sub-section (1).”

#4. The Sections of the Act which are referred to in said Section 43 and in the light of which the reference was answered by the Division Bench as well as some other Sections having bearing on the matters in issue, are extracted hereunder: “17. Tenant to be given first option of purchasing site on which he has built dwelling house.- (1) If a landlord to whom the site referred to in section 16 belongs, intends to sell such site, the tenant at the expense of whom or whose predecessor-in-title, a dwelling house is built thereon shall be given in the manner provided in sub-section (2) of the first option of purchasing the site at a value determined by the Tribunal. (2) The landlord intending to sell such site shall give notice in writing to the tenant requiring him to state within three months from the date of service of such notice whether he is willing to purchase the site. (3) If within the period of three months so specified the tenant intimates in writing to the landlord that he is willing to purchase the site, the landlord shall make an application to the Tribunal for the determination of the value of the site. On receipt of such application the Tribunal after giving notice to the tenant and after holding an inquiry shall determine the value of the site [which shall not exceed 20 times the annual rent thereof]. The Tribunal may, by an order in writing require the tenant to deposit the amount of value of such site [within one year] from the date of such order. On the deposit of such amount the site shall be deemed to have been transferred to the tenant and the amount deposited A B C D E F G H VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 913 shall be paid to the landlord. The Tribunal shall on payment of the prescribed fees grant a certificate in the prescribed form to such tenant specifying therein the site so transferred and the name of such tenant. (4) If the tenant fails to intimate his willingness to purchase the site within the time specified in sub-section (2) or fails to deposit the amount of the value within the time specified in sub-section (3) the tenant shall be deemed to have relinquished his right of first option to purchase the site and the landlord shall then be entitled to evict the tenant either on payment of such compensation for the value of the structure of such dwelling house as may be determined by the Tribunal or allow the tenant at his option to remove the materials of the structure. (5) Any sale of a site held in contravention of this section shall be null and void. A B C 17B. Tenant to be deemed to have purchased sites referred to in section 16 from specified date. D (1) On and with effect from such date as the State Government may, by notification in the Official Gazette, specify, every tenant referred to in section 16 shall be deemed to have purchased from his landlord the site on which the dwelling house occupied by such tenant, was built, and the land immediately appurtenant thereto and necessary for enjoyment of the dwelling house free from all encumbrances at the price to the fixed by the Tribunal, being a price not exceeding twenty times the annual rent for the site. (2) [Deleted by Guj. Act No.5 of 1973] (3) As soon as may be thereafter, the Tribunal shall publish or cause to be published a notice in such village within its jurisdiction in which all such sites are situate and shall, as far as practicable, issue notice to each such landlord and tenant and to any other person interested in such site to appear before it on the date specified in the notice. The notice published in a village shall be affixed in the Chavdi or at such public place as the Tribunal may direct. (4) The Tribunal shall, after giving an opportunity to such landlord, tenant and other person interested to be heard and after holding an inquiry determine the price of the site. E F G H 914 SUPREME COURT REPORTS [2020] 5 S.C.R. (5) On the determination of the price of the site under sub-section (4), the tenant shall deposit the amount of such price with Tribunal- (a) either in lump sum within one year from such date, or (b) in such instalments not exceeding three with simple interest at the rate of 4½ per cent per annum, and at such intervals during the period not exceeding three years and on or before such dates. as may be fixed by the Tribunal and the Tribunal shall direct that the amount deposited in lump sum or the amount of the instalments deposited at each interval shall be paid in accordance with the provisions of section 32Q so far as they are applicable. (6) On the deposit the amount of the price in lump sum or of the last instalment of such price, the Tribunal shall, on payment of a prescribed fee, grant a certificate in the prescribed form to the tenant declaring him to be the purchaser to the site. Such certificate shall be conclusive evidence of the sale. (7) If the tenant fails to pay any instalment on or before the date fixed by the Tribunal under sub-section (5), the amount of such instalment and the interest thereon shall be recovered as an arrear of land revenue. (8) If after holding an inquiry under sub-section (4), the Tribunal is satisfied that the tenant is not willing to purchase the site, the Tribunal shall issue a certificate to the landlord to that effect. On the issue of such certificate the landlord shall be entitled to evict the tenant and dispose of the site in such manner as he may think fit either on payment of such compensation for the value of the structure of such dwelling house as may be determined by the Tribunal, or after allowing the tenant, at his option, to remove the materials of the structure; Provided that the landlord shall not dispose of the site in any manner except by first giving option of purchasing the same for the price determined by the Tribunal, to an agricultural labourer, landless person, small holder or a village artisan, who owns no house site, in the said order of priority and where any site is disposed of without giving such option such disposal shall be void: A B C D E F G H VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 915 Provided further that the provisions of section 63 shall apply to the disposal of the site in any manner in a case where the option of purchase is not exercised by any of the persons mentioned in the first proviso.

#32. Tenants deemed to have purchased land on tillers’ day.- (1) On the first day of April 1957 (hereinafter referred to as “the tillers’ day”) every tenant shall, subject to the other 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, if- (a) such tenant is a permanent tenant thereof and cultivates A B C land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or D (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar, on or before the 31st day of March 1957 under section 29 for obtaining possession of the land ; or (iii) the landlord has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land: Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the provision of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as “the postponed date”: Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section (3) of section 31 shall E F G H 916 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H be deemed to have purchased the land on the 1st day of April, 1958, if no separation of his share has been effected before the date mentioned in that proviso. (1A) (a) Where a tenant, on account of his eviction from the land by the landlord, before the 1st April, 1957, is not in possession of the land on the said date but has made or makes an application for possession of the land under sub-section (1) of section 29 within the period specified in that sub-section, then if the application is allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the Gujarat Revenue Tribunal, he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed. (b) Where such tenant has not made an application for possession within the period specified in sub-section (1) of section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or as the case may be, on the date of the final rejection of the application. (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 and or any part thereof and such land or part thereof is in the possession of the landlord or his successor-in-interest on the said date and such land or part thereof is not put to a non-agricultural use on or before the said date, then the Mamlatdar shall, notwithstanding anything contained in the said section 29 or any other 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 may 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 VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 917 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: A Provided that the tenant shale be entitled to restoration of land or part thereof, as the case may be, under this sub-section only if he gives an undertaking in writing within such period as may be prescribed to cultivate it personally and of so much thereof as together with the other land held by him as owner or tenant shall not exceed the ceiling area: Provided further that - (i) if the tenant fails to give such undertaking within such prescribed period, or if the tenant, after giving such undertaking, refuses to accept the tenancy or possession of the lands, the land the possession of which the landlord or as the case may be, his successor-in-interests is not entitled to retain under this sub-section; or (ii) if the tenant gives such undertaking and accepts such tenancy or possession of the land, such portion of the land referred to in clause (i) to the restoration of which the tenant would not be entitled under the first proviso, shall vest in the State Government free from all encumbrances, and shall be disposed of in the manner provided in sub-section (2) of section 32 P. Explanation. - In this sub-section “successor in interest” means a person who acquires the interest by testamentary disposition or devolution on death. (2) Where by custom, usage or agreement or order of a Court, any warkas land belonging to the landlord is used by the tenant for the purpose of rab manure in connection with rice cultivation in the land held by him as tenant- (a) the whole of such warkas land, or (b) as the case may be, such part thereof as the Tribunal may determine in cases where such warkas land, is jointly used by more persons than one for the purposes of rab manure, shall be included in the land to be deemed to have been purchased by the tenant under sub-section (1): B C D E F G H 918 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H Provided that in cases referred to in clause (b) the Tribunal may determine that such warkas land shall be jointly held by persons entitled to use the same, if in the opinion of the Tribunal, the partition of such warkas land by metes and bounds is neither practicable nor expedient in the interest of such persons. (3) In respect of the land deemed to have been purchased by a tenant under subsection (1),- (a) the tenant shall continue to be liable to pay to the landlord the rent of such land, and (b) the landlord shall continue to be liable to pay to the State Government the dues, if any, referred to in clauses (a), (b), (c) and (d) of sub-section (1) of section 10A, where the tenant is not liable to pay such dues under subsection (3) of that section. until the amount of the purchase price payable by the tenant to the landlord is determined under section 32H. (4) On the date of the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1960 (Gujarat XVI of 1960), every tenant in the areas within the limits of Municipal Boroughs Act, 1925 (Bombay XVIII of 1925), or within the limits of municipal districts constituted under the Bombay District Municipal Act, 1901 (Bombay III of 1901), shall, subject to the other provisions of this Act, be deemed to have purchased from a landlord free from all encumbrances subsisting thereon on the said date the land held by him as tenant, as if the said date were the tillers’ day: Provided that nothing in this sub-section shall apply to land leased by a landlord and situated within the limits of, any such Municipal borough or municipal district, if such land does not exceed an economic holding and the total annual income of the landlord including the rent of such land does not exceed Rs. 1,500 and such land is not held under a permanent tenancy. (5) A person eligible to the exemption as provided in the proviso to sub-section (4), shall make an application before the 1st day of July 1961 to the Mamlatdar for a certificate as provided in section 88C, and the provisions of sub-sections (2) to (4) of that section VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 919 shall apply thereto as if the application had been made under section 88C. A (6) The provisions of sections 32S, 32T and 32U shall mutatis mutandis apply to the termination of tenancy of such land by a landlord holding a certificate under sub-section (5) and purchase of such land by the tenant thereof as if such landlord were a certified landlord and such tenant were an excluded tenant within the meaning of those sections. 32A. Tenants deemed to have purchased up to ceiling area:- A tenant shall be deemed to have purchased land under section 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 will raise his holding to the extent of the ceiling area. 32B. When tenants not deemed to have purchased lands:- 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 under section 32. 32F. Right of tenant to purchase where landlord is minor etc. – (1) Notwithstanding anything contained in the preceding sections,- (a) where the landlord is a minor or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31: Provided that were a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March B C D E F G H 920 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion, as the share of that person in the entire joint family property, and not in a larger proportion. (b) where the tenant is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised- (i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; (iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist; (iv) within one year from the date on which the tenant ceases to be serving member of the armed forces; Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion. (1A) On and after the date of commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1960 (Gujarat XVI of 1960) (hereinafter referred to in this sub-section as “the said date”), every tenant who has not exercised his right of purchase within the period of one year within which it may be exercised under sub-section (1) shall, if the said period has VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 921 commenced be deemed to have been purchased the land on the said date, whether the period has expired or not; and if the period has not commenced, he shall be deemed to have purchased the land on the date on which the period would have commenced but for the provisions of this sub-section. (2) The provisions of sections 32 to 32E (both inclusive) and sections 32G, to 32R. (both inclusive), shall, so far as may be applicable, apply to such purchase. 32H. Purchase price and its maxima:- (1) Subject to the additions and deductions as provided in sub-sections (1A) and 1(B), the purchase price shall be reckoned as follows, namely:– (i) in the case of a permanent tenant who is cultivating the land personally the purchase price shall be the aggregate of the following amounts, that is to say,– (a) an amount equal to six times the rent of the land; (b) the amount of the arrears of rent, if any, lawfully due on the tillers’ day or the postponed date; (c) the amounts, if any, paid by or recovered from the landlord as land revenue and cesses referred to in clauses (a), (b), (c) and (d) of sub-section (1) of section 10A, in the event of the failure on the part of the tenant to pay the same; (ii) in the case of other tenants, the purchase price shall be the aggregate of the following amounts, that is to say:– (a) such amount as the Tribunal may determine not being less than 20 times the assessment and not more than 200 times the assessment. (b) the value of any structures, wells and embankments constructed and other permanent fixtures made and trees planted by the landlord on the land; (c) the amount of the arrears of rent, if any, lawfully due on the tillers’ day or the postponed date; A B C D E F G H 922 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H (d) the amounts, if any, paid by or recovered from the landlord as land revenue and other cesses referred to in clauses (a), (b), (c) and (d) of sub-section (1) of section 10A, in the event of the failure on the part of the tenant to pay the same. Explanation 1.– For the purposes of calculating the price under this subsection, the amount of water rate, if any, levied under section 55 of the Bombay Land Revenue Code, 1879, and included in such assessment, shall be excluded. Explanation 2.– For the purposes of this sub-section, the expression “assessment” shall have the meaning assigned to it in section 8. (1A) Where a tenant to whom sub-sections (1) and (2) of section 10A do not apply, has, after the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955, paid in respect of the land held by him as tenant land revenue and other cesses referred to in sub-section (1) of that section, on account of the failure of the landlord to pay the same, a sum equal to the total amount so paid by the tenant until the date of the determination of the purchase price shall be deducted from the aggregate of the amounts determined under sub-section (1). (1B) (a) On the amount arrived at in accordance with the provisions of sub-sections (1) and (1A), there shall be calculated interest at 4½ per cent. per annum for the period between the date on which the tenant is deemed to have purchased the land under section 32 and the date of the determination of the purchase price. (b) (i) The amount of interest so calculated shall be added to, (ii) the amount of rent, if any, paid by the tenant to the landlord and the value of any products of trees planted by the landlord if such products are removed by the landlord during the said period shall be deducted from, the amount so arrived at. (2) The State Government may, by general or special order, fix different minima and maxima for the purpose of sub-clause (a) of clause (ii) of sub-section (1) in respect of any kind of land held by VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 923 tenants in any backward area. In fixing such minima and maxima, the State Government shall have regard to the rent payable for the land and the factors specified in sub-section (3) of Section 63A. 32I. Sub-tenant of permanent tenant to be deemed to have purchased land. – (1) Where a permanent tenant has sub-let the land held by him, the sub-tenant shall, to the extent and subject to the conditions specified in sections 32 to 32E (both inclusive), be deemed to have purchased the land on the tillers’ day. (2) The purchase price thereof shall be determined in the manner provided in clause (ii) of sub-section (1) of section 32H. (3) Out of the purchase price of the payable by such sub-tenant the amount equal to six times the rent shall, in lump sum, be payable to the owner and the balance shall be paid to the permanent tenant. (4) The provisions of sections 32 to 32H (both inclusive) and sections 32J to 32R (both inclusive), in so far as they may be applicable, shall apply to the purchase of the land by such sub- tenant and the payment to be made, to and on behalf, of the permanent tenant. 32O3. Right of tenant whose tenancy is created after tillers’ day to purchase land. – (1) In respect of any tenancy created after the tillers’ day notwithstanding any agreement or usage to the contrary, a tenant cultivating personally shall be deemed to have purchased on the date of expiry of one year from the commencement of such tenancy from the landlord the land held by him or such part thereof as will raise the holding of the tenant to the ceiling area. (2) The provisions of sections 32 to 32N (both inclusive) and of sections 32P, 32Q and 32R in so far as they may be applicable shall apply to the purchase of the land by a tenant under sub-section (1). 3 Section 32O was deleted by Guj. Act No.10 of 2009 A B C D E F G H 924 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H 32P. Power of Collector to resume and dispose of land not purchased by tenant and appeal against Collector’s order: - (1) Where the purchase of any land by tenant under section 32 becomes ineffective under the foregoing provisions of this sub-chapter or where the tenant fails to exercise the right to purchase land under section 43-1D 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-sections (2AA) and (2A) provide (a) that the tenancy in respect of the shall be terminated and the tenant be summarily evicted: (b) Clause (b) deleted by Guj. Act No.5 of 1973 (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”) :- 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”):- (a-i) 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) (ii) (iii) (iv) a co-operative farming society, the members of which are agricultural labourers, landless persons or small holders or a combination of such persons; agricultural labourers; landless persons; small holders; VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 925 (v) (vi) 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, land less in area than an economic holding and who are artisans: an agriculturist (other than a small holder) who holds either as owner or tenant or partly owner and partly as tenant, land les in area than an economic holding and who is an artisan; (vii) an 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: Provided that the State Government may, by notification in the Official Gazette, give, in relation to such local areas as it may specify, such priority in the above order as it thinks fit to any class of persons who, by reason of the acquisition of their land for any development project approved for the purpose by the State Government, have been displaced, and require to be re-settled; Provided further that- (a) where there are two or more co-operative farming societies falling under item, (i), (v) or (vii), preference amongst them shall be given in the following order, namely:- (1) a co-operative farming society each of the members of which belongs to a Scheduled Tribe; (2) a co-operative farming society the membership of which is held partly by persons belonging to a Schedule Tribal and partly by persons belonging to a Schedule Caste; (3) a co-operative farming society each of the members of which belongs to a Scheduled caste; (4) a co-operative farming society the membership of which is not solely held by persons belonging to a Schedule Tribe or Schedule Caste; A B C D E F G H 926 SUPREME COURT REPORTS [2020] 5 S.C.R. A (b) in the case of persons falling under items (ii), (iii) and (iv) preference shall be given in the following order, namely:- (1) a person belonging to a Schedule Tribe; (2) a person belonging to a Schedule Caste; (3) other persons (2AA) 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-clause (a-I) 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. (2A) Where the tenancy in respect of any land is terminated under clause (a) of sub-section (2) but the tenant of such land is a co-operative farming society of the type referred to in sub-clause (i) of clause (c) of sub-section (2), the direction under sub-section, the direction under sub-section (2) shall further provide- (i) that the entire land or such portion thereof, as the case may be, shall be disposed of by sale to the co-operative farming society which was the tenant of the land or as the case may be, portion thereof immediately before the termination of the tenancy under clause (a) of sub-section (2). Provided that the total acreage of the land to be so disposed of shall not exceed an area arrived at by multiplying the ceiling area by the total number of the members of the co-operative farming society; (ii) that on the termination of the tenancy under clause (a) of sub-section (2), the co-operative farming society shall be liable to be evicted only from such portion of the land as could not be disposed of by sale to it under a direction issued under sub-section (2). (3) [Omitted by Gujarat Act No.5 of 1973] (4) Where the land or portion thereof is offered for sale under sub-section (2) but no person comes forward to purchase such land or portion, such land or portion, as the case may be, shall vest B C D E F G H VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 927 in the State Government and the Collector shall determine the price of such land or portion in accordance with the provisions of section 63A and the amount of the price so determined shall, subject to the provisions of section 32Q, be paid to the owner thereof. (5) Where any land is sold under sub-section (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 instalments not exceeding six with simple interest at the rate of 4½ per cent, per annum 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 instalment 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. (7) (a) Where before the specified date, any land has been surrendered to a landlord under sub-section (2) of this section as in force immediately before such date; and the landlord has taken possession of the land, the landlord shall be liable to cultivate the land personally and shall be entitled to the use and occupation of the land so long as he cultivates the land personally. (b) If he fails to so cultivate the land he shall be evicted from the land and the land shall be disposed of in accordance with the provisions of section 84C. (8) No land of the description referred to in sub-section (7) shall be transferred by sale, gift, exchange, mortgage, lease, or assignment or partitioned without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. (9) Any person aggrieved by any order made by the Collector under the foregoing provisions of this section may appeal to the State Government against such order. (10) The State Government shall after giving an opportunity to the parties to be heard, decide the appeal. A B C D E F G H 928 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H (11) The order of the Collector, subject to such appeal and decision of the State Government on appeal, shall be final. 32PP. Further opportunity to tenant to purchase land.- (1) Notwithstanding anything contained in section 32G and 32P where before the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965 (Guj. 36 of 1965), (hereinafter referred to in this section as “the said date”)– (i) any land has been at the disposal of the Collector under section 32P on account of the purchase of the land by the tenant thereof having become ineffective under sub-section (3) of section 32G by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land, and (ii) the land so at the disposal of the Collector has not been disposed of in the manner provided in sub-section (2) of section 32P. the tenant, if he is willing to purchase the land may an application in writing to the Tribunal within a period of one year from the said date for a declaration that the purchase has not become ineffective. (1A) Notwithstanding the expiry of the period specified in sub-section (1), the right conferred under that sub-section, may be exercised as if in that sub-section, for the words, brackets and figures “the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965” (Guj. 36 of 1965), the words, brackets and figures “the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1970” were substituted. (1B) Where an application for a declaration that the purchase has not become ineffective made by a tenant under sub-section (1) before the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1970 (Guj. 2 of 1971), was not admitted by the Tribunal on the ground that the period for making it had expired, such tenant shall also be entitled to exercise the right conferred under sub-section (1) by making an application within the period specified in that sub-section (1) by making an application from any such tenant the Tribunal shall VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 929 admit it as if it were an application made within such specified period. A (1C) Notwithstanding the expiry of the period specified in sub-section (1) read with sub-section (1A), the right conferred under sub-section (1) may be exercised. (a) by a tenant at any time before two months after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1981 (Guj.13 of 1981); B (b) by a specified tenant at any time before the date specified under clause (b) of sub-section (5) of section 32M. C (1D) Where an application for a declaration that the purchase has not become ineffective made by a tenant under sub-section (1) before the specified date was not admitted by the Tribunal on the ground that the period for making it had expired. (a) such tenant shall also be entitled to exercise the right conferred under sub-section (1) by making an application at any time before two months after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1981 (Guj. 13 of 1981); or (b) such tenant being a specified tenant shall also be entitled to exercise the right conferred in sub-section (1) by making an application at any time before the date specified under clause (b) of sub-section (5) of section 32M and on receipt of an application from any such tenant or specified tenant the Tribunal shall admit it as if it were an application made within the period specified for making it. (2) On receipt of an application under sub-section (1) the Tribunal shall issue a notice to the tenant and the landlord calling upon them to appear before it on the date specified in the notice. (3) If the tenant appears and makes a statement that he is willing to purchase the land, the land shall cease to be at the disposal of the Collector under section 32P and the Tribunal shall determine the purchase price of the land in the manner provided in section 32G as if the purchase had not been ineffective. D E F G H 930 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H (4) The provisions of section 32 to 32P and sections 32-Q and 32R shall so far as may be applicable apply to the purchase of the land by a tenant under this section. (5) In the case of land to which this section applies no action shall be taken under section 32P unless the tenant entitled to make an application under this section fails to make such application within the period specified in sub-section (1). Explanation.—Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, for the purpose of clause (ii) of sub-section (1), the land shall not be deemed to have been disposed of till the person entitled to take possession of the land in pursuance of any direction the person entitled to take possession of the land in pursuance of any direction issued under sub-section (2) of section 32P takes actual possession of such land in accordance with law. 32PPP. Further opportunity to purchase land to tenants whose purchase become ineffective after commencement of Guj.36 of 1965.- (1) Notwithstanding anything contained in sections 32G and 32P where on or after the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965 (Guj. 36 of 1965),— (i) any land has been at the disposal of the Collector under section 32P on account of the purchase of the land by the tenant thereof having become ineffective under sub-section (2) of section-32G by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land, and (ii) the land so at the disposal of the Collector has not been disposed of in the manner provided in sub-section (2) of section 32P— (a) the tenant, if he is willing to purchase the land may make an application in writing to the Tribunal before two months after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1981; or VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 931 (b) the tenant, if he is a specified tenant and is willing to purchase the land, may make an application in writing to the Tribunal before the data specified under clause (b) of sub-section (5) of section 32M for a declaration that the purchase has not been ineffective. (2) On receipt of an application under sub-section (1) the Tribunal shall issue a notice to the tenant and the landlord calling upon them to appear before it on the date specified in the notice. (3) If the tenant appears and makes a statement that he is willing to purchase the land, the land shall cease to be at the disposal of the Collector under section 32P and the Tribunal shall determine the purchase price of the land in the manner provided in section 32G as if the purchase has not been ineffective. (4) The provisions of sections 32 to 32P and sections 32Q and 32R shall so far as may be applicable apply to the purchase of the land by a tenant under this section. (5) In the case of land to which this section applies no action shall be taken under section 32P unless the tenant entitled to make an application under this section fails to make such application within the period specified in sub-section (1). Explanation.—Notwithstanding anything contained in any judgement, decree or order of any court, tribunal or other authority for the purpose of clause (ii) of sub-section (1), the land shall not be deemed to have been disposed of till the person entitled to take possession of the land in pursuance of any direction issued under sub-section (2) of section 32P takes actual possession of such land in accordance with law. 32QQ. Deposit or payment of purchase price by State Government on behalf of specified tenant.- (1) (a) Where a specified tenant permitted under clause (b) of subsection (5) of section 32M to deposit with the Tribunal at any time before the date specified under clause (b) of sub-section (5) of section 32M the entire amount of the price of the land or, as the case may be, the unpaid portion of the price, together with the interest, as specified in sub-section (3) and (4) of section 32M, has failed to deposit with the Tribunal such amount before the A B C D E F G H 932 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H date of the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Second Amendment) Ordinance, 1986 (Guj. Ord. 14 of 1986), (hereinafter referred to as “the said date”), the State Government shall, notwithstanding the expiry of the period specified in clause (b) of sub-section (5) of section 32M, deposit on behalf of such specified tenant, with the Tribunal within a period of twelve months from the said date such amount, and on depositing such amount with the Tribunal, the purchase of land shall be deemed not to have become ineffective and the Tribunal shall issue a certificate of purchase to the specified tenant under sub-section (1) of section 32M. (b) Where a specified tenant permitted under clause (b) of sub-section (1C) or clause (b) of sub-section (1D) of section 32PP or under sub-clause (b) of clause (ii) of sub-section (1) of section 32PPP to make at any time before the date specified under clause (b) of sub-section (5) of section 32M an application under sub-section (1) of section 32PP for a declaration that purchase has not become ineffective, fails to make such application before the date specified under clause (b) of sub-section (5) of Section 32M, and the Collector directs under sub-section (2) of section 32P that the land in respect of which the tenancy is terminated shall be disposed of by sale to the specified tenant who is a tenant referred to in sub-clause (a-i) of clause (c) of the said sub-section (2) and the land is disposed of by sale to such specified tenant, the Collector shall issue a certificate of purchase in the form prescribed under sub-section (1) of section 32M to such specified tenant who shall be liable to pay to the Collector the price of such land determined by the Collector under sub-section (5) of section 32P. (2) The amount deposited with the Tribunal under clause (a) of sub-section (1) or, as the case may be, the amount of price of land which the specified tenant is liable to pay to the Collector under clause (b) of sub-section (1) shall be deemed to be the amount of loan granted to the specified tenant by the State Government on such terms and conditions as may be prescribed and the amount of loan and interest or any portion thereof shall be recoverable from such specified tenant as arrears of land revenue. 32R. Purchaser to be evicted if he fails to cultivate personally:- If at any time after the purchase of the land under VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 933 any of the foregoing provisions, the purchaser fails to cultivate the land personally, he shall unless the Collector condones such failure for sufficient reasons, be evicted and the land shall be disposed of in accordance with the provisions of section 84C. 32U. Tenants of lands mentioned in section 88C to be deemed to have purchased land and other incidental provisions. - (1) Notwithstanding anything contained in sub-section (1) of section 88C, but subject to the provisions of this section every excluded tenant holding land from a certified landlord shall, except as otherwise provided in sub-section (3), be deemed to have purchased from the landlord on the first day of April 1962, free from all encumbrances subsisting thereon on the said day, the land hold by him as tenant, if such land is cultivated by him personally; and (i) (ii) the landlord has not given notice of termination of tenancy in accordance with sub-section (3) of section 32T, or the landlord has given such notice but has not made an application thereafter under section 29 for possession as required by the said sub-section (3), or (iii) the landlord not being a person of any of the categories specified in sub-section (4) of section 32T has not terminated the tenancy on any of the grounds specified in section 14 or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1962 under section 29 for possession of the land; Provided that where the landlord has made such application for possession but it is rejected by the Mamlatdar or in appeal by the Collector or in revision by the Gujarat Revenue Tribunal under the provisions of this Act the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. (2) (a) Where a tenant, on account of his eviction from the land by the landlord, before the 1st April, 1962, is not in possession of the land on the said date but has made or makes an application for possession of the land under sub-section (1) of section 29 within the period specified in that sub-section, then if the application is A B C D E F G H 934 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H allowed by the Mamlatdar, or as the case may be, in appeal by the Collector or in revision by the Gujarat Revenue Tribunal, he shall be deemed to have purchased the land on the date on which the final order allowing the application is passed. (b) Where such tenant has not made an application for possession within the period specified in sub-section (1) of section 29 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of the final rejection of the application, such other person shall be deemed to have purchased the land on the date of the expiry of the said period or, as the case may be, on the date of the final rejection of the application. (3) Where the certified landlord being a person of any of the categories specified in sub-section (4) of section 32T has not given notice of termination of the tenancy of an excluded tenant in accordance with sub-section (3) of that section or has give such notice but has not made an application thereafter under section 29 for possession as required by the said sub-section (3) such excluded tenant shall be deemed to have purchased the land held by him as tenant on the expiry of the period specified in sub-section (4) of section 32T: Provided that where the tenancy is terminated and application for possession is made in accordance with the provisions of sub-section (4) of section 32T but the application is rejected by the Mamlatdar or in appeal by the Collector or in revision by the Gujarat Revenue Tribunal, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. (4) The provisions of section 32 to 32R shall so far as may be applicable apply to the purchase of land under this section by an excluded tenant.

#33. Right of tenants to exchange land. – (1) Notwithstanding anything contained in this Act or any other law or any agreement or usage, the tenants holding lands as such tenants may agree and may make an application to the Mamlatdar in the prescribed form for the exchange of their tenancies in respect of the lands held by them as tenants. VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 935 (2) On receipt of the application, the Mamlatdar after giving notice to the landlords concerned and after making an inquiry may sanction the exchange on such terms and conditions as may be prescribed and may issue certificate in the prescribed form to the applications. (3) The certificate so issued shall be conclusive of the fact of such exchange against the landlords and all persons interested in the lands exchanged (4) Each of the two tenants shall on exchange hold the land on same terms and conditions on which it was held by the original tenant immediately before the exchange subject to such modifications as may have been sanctioned by the Mamlatdar. 63A. Reasonable price of land for the purpose of its sale and purchase.- (1) Except as otherwise expressly provided in this Act, the price of any land sold or purchased under the provisions of this Act shall consist of the following amounts, namely :– (a) an amount not being less than 20 times the assessment levied or leviable in respect of the land and not being more than 200 times such assessment excluding, however, for the purpose of calculation, the amount of water rate, if any, levied under section 55 of the Bombay Land Revenue Code, 1879 (Bom. V of 1879), and included in such assessment; (b) the value of any structures, wells and embankments constructed, permanent fixtures made and trees planted on the land. (2) Where under the provisions of this Act any land is sold or purchased by mutual agreement, such agreement shall be registered before the Mamlatdar, and the price of the land shall, subject to the limits specified in sub-section (1), be such as may be mutually agreed upon by the parties. In the case of disagreement between the parties, the price shall be determined by the Tribunal having regard to the factors mentioned in this section. (3) Where in the case of a sale or purchase of any land under this Act, the Tribunal or the Mamlatdar has to fix the price of such A B C D E F G H 936 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H land under this Act, the Tribunal or the Mamlatdar, as the case may be, shall, subject to the quantum specified in sub-section (1), fix the price having regard to the following factors, (a) the rental values of lands used for similar purposes in the locality; (b) the structures and wells constructed and permanent fixtures made and trees planted, on the land by the landlord or tenant; (c) the profits of agriculture of similar lands in the locality; (d) the prices of crops and commodities in the locality; (e) the improvements made in the land by the landlord or the tenant; (f) the assessment payable in respect of the land; (g) such other factors as may be prescribed; Explanation.– For the purposes of this section the expression “assessment” shall have the meaning assigned to it in section 8.

#64. Sale of agricultural land to particular person. – (1) Where a landlord intends to sell any land, he shall apply to the Tribunal for determining the reasonable price thereof. The Tribunal shall thereupon determine reasonable price of the land in accordance with the provisions of section 63A. The Tribunal shall also direct that the price shall be payable either in lump sum, or in annual instalments not exceeding six carrying simple interest at 4½ per cent per annum: Provided that in the case of sale of the land in favour of a permanent tenant when he is in possession thereof, the price shall be at six times the annual rent. (2) After the Tribunal has determined the reasonable price, the landlord shall simultaneously in the prescribed manner make a offer:- (a) in the case of agricultural land- (i) to the tenant in actual possession thereof, notwithstanding the fact that such land is a fragment, VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 937 (ii) to all persons and bodies mentioned in the propriety list; A (b) in the case of a dwelling house, or a site of a dwelling house or land appurtenant to such house when such dwelling house, side or land is not used or is not necessary to carry on agricultural operations in the adjoining lands- (i) to the tenant thereof: (ii) to the person residing in the village who is not in possession of any dwelling house; Provided that if there are more than one such person the offer shall be made to such person or persons and in such order of priority as the Collector may determine in this behalf having regard to the needs of the following persons, namely:- (i) an agricultural labourer, (ii) an artisan, (iii) a person carrying on an allied pursuit, (iv) any other person in the village. (3) The persons to whom such offers are made shall intimate to the landlord within one month from the date of receipt of the offer whether they are willing to purchase the land at the price fixed by the Tribunal. (4) (a) If only one person intimates to the landlord under sub-section (3) his willingness to accept the offer made to him by the landlord under sub-section (2), the landlord shall call upon such person by a notice in writing in the prescribed form to pay him the amount of the reasonable price determined by the Tribunal or to deposit the same with Tribunal within one month or such further period as the landlord may consider reasonable from the date of receipt of the notice by such person. (b) If more than one person intimates to the landlord under sub-section (3) their willingness to accept the offers made to them by the landlord under sub-section (2), the landlord shall call upon by a notice in writing in the prescribed form and the person having B C D E F G H 938 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H the highest priority in the order of priority given in sub-section (2) to pay him the amount of the reasonable price determined by the Tribunal or to deposit the same with Tribunal within one month or such further period as the landlord may consider reasonable from the date of receipt of the notice by such person. (5) If the person to whom a notice is given by the landlord under sub-section (4) fails to pay the amount of the reasonable price to the landlord or to deposit the same with the Tribunal within the period referred to in sub-section (4) such person shall be deemed to be not willing to purchase the land and the landlord shall call upon in the manner provided in sub-section (4) the person who stands next highest in the order of priority and who has intimated his willingness to the landlord under sub-section (3). (6) If any dispute arises under this section regarding- (a) the offer made by the landlord under sub-section (2), or (b) the notice given by the landlord under sub-section (4) or (5), or (c) the payment or deposit of the reasonable price, or (d) the execution of the sale deed, such dispute shall be decided by the Tribunal. (7) (a) Notwithstanding anything contained in the foregoing provisions of this section a landlord may after obtaining the previous permission of the Tribunal as provided in the next succeeding clause (b) sell any land notwithstanding the fact that such land is a fragment to the tenant in actual possession thereof at a price mutually agreed upon between him and the tenant subject to the provisions of section 63A. (b) The landlord shall make an application in writing to the Tribunal for permission to sell the land at such price. On receipt of the application, the Tribunal shall grant the permission if, on holding an inquiry, it is satisfied that the price has been agreed to voluntarily by the tenant. (8) Any sale made in contravention of this section shall be invalid. (9) If a tenant refuses or fails to purchase the land or a dwelling house offered to him under this section, and the land or the dwelling VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 939 house, as the case may be, is sold to any other person under this section, the landlord shall be entitled to evict such tenant and put the purchaser in possession. 84C. Disposal of land, transfer or acquisition of which is invalid.- (1) Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold any inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid. (2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid, unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land alongwith the rights and interest therein to the position in which it was immediately before the transfer or acquisition, and the land is so restored within that period: Provided that where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceiling area, the Mamlatdar shall not declare such transfer to be invalid- (i) if the amount received by the landlord as the price of the land is equal to or less than the reasonable price determined undersection 63A and the transferee pays to the State Government a penalty equal to Re.1 within such period not exceeding three months as the Mamlatdar may fix; (ii) if the amount received by the landlord as the price of the land is in excess of the reasonable price determined under section 63A and the transferor as well as the transferee pays to the State Government each a penalty equal to one- A B C D E F G H 940 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H tenth of the reasonable price within such period as may be fixed by the Mamlatdar. (3) On the declaration made by the Mamlatdar under sub-section (2),— (a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting and shall be disposed of in the manner provided in sub-section (4); the encumbrances shall be paid out of the occupancy price in the manner provided in section 32Q for the payment of encumbrances out of the purchase price of the sale of land but the right of the holder of such encumbrances to proceed against the person liable, for the enforcement of his right in any other manner, shall not be affected; (b) the amount which was received by transferor as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recoverable as an arrear of land revenue; and (c) the Mamlatdar shall, in accordance with the provisions of section 63A determine the reasonable price of the land. (4) After determining the reasonable price, the Mamlatdar shall grant the land on new and impartible tenure and on payment of occupancy price equal to the reasonable price determined under sub-section (3) in the prescribed manner in the following order of priority:— (i) the tenant in actual possession of the land; (ii) the persons or bodies in the order given in the priority list: Provided that where the transfer of land was made by the landlord to the tenant of the land and area of the land so transferred together with the area of the land, if any, cultivated personally by the tenant did not exceed the ceiling area then— (i) if the amount received by the transferor as the price of the land is equal to or less than the reasonable price, the amount forfeited under sub-section (3) shall be returned to the transferor and the land restored to the transferee on payment of a penalty of rupee one in each case; and VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 941 (ii) if the amount received by the transferor as the price of the land is in excess of the reasonable price, the Mamlatdar shall grant the land to the transferee on new and impartible tenure and on payment of occupancy price equal to one- tenth of the reasonable price and out of the amount forfeited under sub-section (3), the transferor shall be paid back an amount equal to nine-tenths of the reasonable price. (5) The amount of the occupancy price realised under sub-section (4) shall subject to the payment as aforesaid of any encumbrances subsisting on the land, be credited to the State Government: Provided that where the acquisition of any excess land was on account of a gift or bequest, the amount of the occupancy price realised under sub-section (4) in respect of such land shall, subject to the payment of any encumbrances subsisting thereon, be paid to the done or legatee in whose possession the land had passed on account of such acquisition. Explanation.—For any purposes of this section “new and impartible tenure” means the tenure of occupancy which is non-transferable and non-partible without the previous sanction of the Collector. A B C D 88B. Exemption from certain provisions to and of local authorizes, universities and trusts.- E (1) Nothing in the foregoing provisions, except sections 3, 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply— (a) to lands held or leased by a University established by law in the [Bombay area of the state of Gujarat; and (b) to lands which are the property of a trust for an educational purpose a hospital, Punjarapol. or Gaushala; (c) to lands assigned or donated by any person before the 1st day of August, 1956, for the purpose of rendering any of the following services useful to the community, namely:— F G maintenance of water works, lighting or filling of water throughs for cattle: H 942 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G Provided that — (i) such trust is or is deemed to be registered under the Bombay Public Trusts Act, 1950 (Bom. XXIX of 1950), (ii) the entire income of such land is appropriated for the purposes of such trust. (2) For the purposes of this section a certificate granted by the Collector, after holding an inquiry, that the conditions in the proviso to sub-section (1) are satisfied by any trust shall be conclusive evidence in that behalf. (3) Notwithstanding anything contained in sub-section (1), nothing in the foregoing provisions of this Act shall apply to lands leased for cultivation with the help of sewage, whether before or after the commencement of the Amending Act, 1955 by a local authority in discharge of its duties and functions relating to the establishment and maintenance of a farm for the disposal of sewage under the law under which such local authority is constituted. 88E. Cessor of exemption in respect of certain public trust lands. – (1) Notwithstanding anything contained in section 88B, with effect on and from the specified date, lands which are the property of an institution for public religious worship shall cease to be exempted from those provisions of the Act except sections 31 to 31D (both inclusive) from which they were exempted under section 88B and all certificates granted under that section in respect of such lands shall stand revoked. (2) Where any such land ceases to be so exempted, then in the case of a tenancy subsisting immediately before the specified date the tenant shall be deemed to have purchased the land on the specified date and the provisions of sections 32 to 32R (both inclusive) shall so as far may be applicable, apply. Exemption. - In this section “specified date” means the date of the commencement of the Gujarat Devasthan Inams Abolition Act, 1969 (Gujarat 16 of 1969).” H

#5. The aforesaid provisions generally deal with the right of purchase conferred upon a tenant and process to effectuate said right of VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 943 purchase. Following provisions, inter alia, deal with some of the incidents while the relationship as a tenant is in operation including assignment on part of the tenant:- “14.Termination of tenancy for default of tenant :- (1) Notwithstanding any law, agreement or usage or the decree or order of a court, the tenancy of any land shall not be terminated— (a) unless the tenant— (i) has failed to pay the rent for any revenue year before the 31st day of May thereof; (ii) has done any act which is destructive or permanently injurious to the land; (iii) has sub-divided, sub-let or assigned, the land in contravention of section 27; (iv) has failed to cultivate it personally; or (v) has used such land for a purpose other than agriculture or allied pursuits; and (b) unless the landlord has given three months’ notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section.

#27. Sub-division, sub-letting and assignment prohibited:- (1) Save as otherwise provided in section 32F no sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid: Provided that nothing in this sub-section shall prejudicially affect the rights of a permanent tenant: Provided further that if the tenant dies:” A B C D E F G (i) if he is a member of a joint family, the surviving members of the said family, and H 944 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G H (ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased subject to the following conditions:- (a) each sharer shall hold his share as a separate tenant. (b) the rent payable in respect of the land leased shall be apportioned among the shares, as the case may be, according to the share allotted to them. (c) the area allotted to each sharer shall not be less than the unit which the State Government may, by general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient use of the land for agriculture. (d) if such area is less than the unit referred to in clause (c), the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds. (e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by the Mamlatdar, whose decision shall be final. (2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant:- (a) who is a widow, minor or a person subject to any physical or mental disability, or a serving member of the armed forces, to sub-let such land held by her or him as a, tenant; or (b) Who is a member of a co-operative farming society and as such member to sub-let, assign mortgage or to create a charge on his interest in the land in favour of such society, or in consideration of a loan advanced by any person authorised under section 54 of the Bombay Agricultural Debtors Relief Act, 1947. (3) Notwithstanding anything contained in sub-section (1), it shall also be lawful for a tenant to mortgage or create a charge on his VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS. [UDAY UMESH LALIT, J.] 945 interest in the land in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1883, the Agriculturists, Loans Act, 1884, or the Bombay Non-Agriculturists, Lands Act, 1928, or in favour of a co-operative society in consideration of a loan advanced to him by such co-operative society, and without prejudice to any other remedy open to the State Government or the co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government or the co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.”

#6. The facts leading to the filing of Appeal arising out of Special Leave Petition (Civil) No.18525 of 2009, by way of illustration, are set out in detail as under:- a) Agricultural land bearing Survey No.102 admeasuring 0.88 hectares situated within the revenue limits of village Gabheni, Taluka Chorayasi, District Surat (‘said land’ for short) was in the cultivating possession of one Samubhai Budhiabhai as tenant. As part of agrarian reforms and in terms of the provisions of the Act conferring right of statutory purchase upon the tiller of the land, Samubhai became Deemed Purchaser as he was cultivating the land on the tillers’ day. b) Samubhai executed a registered Will on 24.01.1991 in favour of Vinodchandra Sakarlal Kapadia, the Appellant herein purporting to bequeath the said land to the Appellant. Upon the demise of Samubhai on 02.02.1991, vide mutation No.2141 certified on 20.06.1991, the name of the Appellant came to be recorded in the revenue records as owner of the said land. c) The Revenue Authorities however found that the Appellant was not an agriculturist and accordingly proceedings under Section 84C of the Act were registered and notice was issued to the Appellant. All the concerned parties appeared in the proceedings and the legal heirs of deceased Samubhai submitted that they had no objection if the land was given to the Appellant in terms of the Will. After hearing the Appellant, the Additional Mamlatdar by his order dated 04.03.1996 in A B C D E F G H 946 SUPREME COURT REPORTS [2020] 5 S.C.R. A B C D E F G Tenancy Case No. 78/95 found that the disposal by way of a Will in favour of the Appellant was invalid and contrary to the principles of Section 63 of the Act and therefore declared that the said land vested in the State without any encumbrances. d) The order passed by the Additional Mamlatdar was affirmed in Tenancy Appeal No.20/1996 by Deputy Collector, Land Development, Surat, vide his order dated 15.07.1996. The matter was carried further by way of Revision Application No.TEN.B.S.94 of 1996 before Gujarat Revenue Tribunal. Relying on certain decisions rendered by the High Court, the Tribunal observed that disposal by way of a Will would not amount to transfer and as such, it would not be hit by Section 63 of the Act. The Tribunal thus allowed the Revision and quashed the orders passed by the Additional Mamlatdar and the Deputy Collector. e) The State, being aggrieved, preferred Special Civil Application No.25058 of 2006 in the High Court which came up before a Single Judge of the High Court. Relying on the decisions of this Court in Sangappa Kalyanappa Bangi (Dead) through LRs. vs. Land Tribunal, Jamkhandi and others4 and in Jayamma vs. Maria Bai (Dead) by proposed LRs and another5, the Single Judge referred the matter to the Division Bench of the High Court for consideration.

#7. Similar references were made in all other connected matters raising identical issues, which were dealt with by the Division Bench of the High Court in its judgment and order presently under Appeal.

#8. The Division Bench considered the scope and ambit of Sections 43 and 63 of the Act as under:- “We may, before examining the scope and ambit of Section 43 and 63 of the Tenancy Act, examine the object and purpose of the Tenancy Act. The Bombay Tenancy Act was enacted with an avowed object of safeguarding interest of the tenants who held the land for over a number of years, on principle that the land tilled to the tillers of the soil and also to preserve agricultural lands to safeguard interest of the agriculturists. Object is also to improve