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Judgment
S.H. Sheth, J.—The petitioner is the tenant of S. No. 1943/1-4 of Borsad in Kaira District. It admeasures A.G.O. 39. Respondent No. 1 is
the landlord. The landlord obtained an exemption certificate in respect of the land in question u/s 88C of the Bombay tenancy and agricultural lands
Act, 1948. Thereafter the landlord terminated the tenancy of the tenant and filed a suit for possession u/s 32T. The Mamlatdar decided that suit
and made an order directing the tenant to hand over possession of half the land to the landlord. The tenant appealed against that order to the
Deputy Collector Kaira, by his order dated 25th April 1968 he dismissed that appeal. The tenant challenged the appellate order in a revision
application which he filed before the Gujarat Revenue Tribunal. The Revenue Tribunal dismissed it on 9th April 1969.
On 16th June 1970 possession of half the land was taken from the tenant and handed over to the landlord.
Before possession of half the land was taken from the tenant in pursuance of the order of possession finally confirmed by the Revenue Tribunal
the tenant made an application to the State Government in may 1970 in which he prayed that the exemption certificate granted to the landlord u/s
88C be revoked. According to him, the economic condition of the landlord had improved and his annual income had exceeded Rs. 1500/-. That
application was made by the tenant to the State Government u/s 88D. Thereafter he applied to the State Government for staying the recovery of
possession of half the land from him. The State Government did not grant him the stay order and dismissed the application.
It is that order which is challenged by Mr. Christie on behalf of the petitioner in this petition.
The impugned order states that nothing could be done in the matter because the proceedings u/s 32T had come to a final termination. Mr.
Christie has contended before me that the proceedings u/s 32T had not come to a final termination because possession of half the land in question
had not been taken from the tenant in pursuance of the order of possession made against him. He has also contended that there is no time limit
prescribed for making an application u/s 88D. On merits he has contended that the petitioner was not heard and that if the petitioner was heard, he
would have shown that the economic condition of the landlord had improved and that, therefore, the exemption certificate granted to him u/s 88C
was liable to, be revoked.
An exemption certificate granted u/s 88C can be revoked if it survives and is in force. Now an exemption certificate which a landlord obtains
enables him to institute proceedings u/s 32T for recovering possession of the land on the ground that he requires the land bona fide for cultivating it
personally. Now, in the instant case the landlord had instituted proceedings u/s 32T and had succeeded in obtaining an order for possession in
respect of half the land. That order was confirmed by the deputy Collector in appeal and by the Gujarat revenue tribunal in revision application.
The revision application came to a final termination on 9th April 1969. Rights of both the parties in terms of the exemption certificate granted to the
landlord u/s 88C were finally worked out in judicial proceedings on 9th April 1969 when the landlord became entitled to recover possession of
half the land and the tenant became entitled to retain possession of the other half. There were no further proceedings taken by the tenant thereafter.
On 9th April 1969 the tenant became entitled to retain half the land u/s 32T(6) because by virtue of the provisions contained in that sub-section his
tenancy in respect of the remaining half could not be terminated by the landlord. Obviously therefore he acquired the right of a statutory purchase
of the other half under Clause 32 of the tenancy Act.
Mr. Christie has argued before me that the proceedings cannot be said to have come to final termination until possession of half the land in
pursuance of the order of possession against the tenant was taken. Possession was taken about 14 months after the revenue tribunal confirmed the
order of possession made by the Mamlatdar. In my opinion, when the revenue tribunal decided the revision application filed by the tenant and since
no further proceedings had been taken by the tenant to challenge the order of possession made against him, the judicial proceedings came to an
end on 9th April 1969 when the rights of the parties in respect of the land were finally worked out. All that remained to be done thereafter was the
execution of that order and taking possession. If an order for possession has been finally made and possession has not been taken in pursuance of
that order, it cannot be said that proceedings u/s 32T are pending and that, therefore, proceedings can be instituted u/s 88D for cancellation of the
exemption certificate. In my opinion, on 9th April 1969 the exemption certificate granted to the landlord u/s 88C ceased to operate and, therefore,
ceased to exist in law. On that date the tenant acquired the right of statutory purchase of half the land and the landlord became finally entitled to
take possession of half the land for bona fide personal cultivation. The State Government was therefore, justified in taking the view that on account
of final termination of proceeding u/s 32T there was nothing which remained to be done in respect of the exemption certificate because it ceased to
operate.
Technically Mr. Christie is right in arguing that there is no time limit prescribed for making an application u/s 88D. It is true that an exemption
certificate granted u/s 88C can be revoked at any time but, in my opinion, it can be revoked only during the period it is in force. There is no point
in canceling it or revoking it after it ceases to operate and after it has ceased to exist. In the instant case, as early as on 9th April 1969 the
exemption certificate granted to the landlord u/s 88C had ceased to exist in law and therefore, there was nothing which remained to be done by the
State Government in the matter of its revocation u/s 88D of the tenancy Act.
Mr. Christie has next argued before me that as the economic condition of the landlord had improved it rendered the exemption certificate liable
to be cancelled. Improvement of the economic condition of the landlord can be taken into account and adjudicated upon for the purpose of
revoking the exemption certificate only during the period it is in force and it exists in law. What happens to the economic condition of the landlord
after the exemption certificate has ceased to exist in law is immaterial. Therefore, this argument cannot help Mr. Christie.
He has lastly argued that no opportunity was given to the tenant of being heard. I am assuming that no opportunity was given to the tenant of
being heard in the matter of the application which he made to the State Government u/s 88D. Ordinarily, under the aforesaid circumstances the
case would be required to be remanded to the State Government. In the instant case, it is not necessary to do so because there is nothing which
the tenant can urge before the State Government in light of the decision which I have recorded in this judgment. Therefore, to set aside the
impugned order and to remand the case to the State Government will be an exercise in futility. I, therefore, do not propose to accede to the
argument which Mr. Christie has raised before me.
Mr. Christie has cited before me three decisions in support of the argument which he has advanced before me. The first decision is in Ganibhai
Musabhai v. State of Gujarat 10 Gujarat Law Reporter 274. All that has been laid down in that decision by Mr. Justice Bakshi is that the
proceedings u/s 88D are judicial in character and must be decided on objective facts after giving both the parties an effective hearing. There is no
dispute about this principle. It has no application to the facts of the present case because in the instant case the exemption certificate had ceased to
operate with effect from 9th April 1969. In the case decided by Mr. Justice bakshi proceedings u/s 32T for recovering possession of the land in
respect of which an exemption certificate was granted u/s 88C were not instituted, by the landlord at all. Therefore, the exemption certificate had
been in force. Therefore, that decision has no application to the facts of the present case.
The next decision to which he has invited my attention is in Od Zaverbhai Gobarbhai v. State of Gujarat and Ors. 10 Guj LR 492. In that
decision also proceedings for recovering possession u/s 32T had not been instituted in pursuance of the exemption certificate obtained by the
landlord u/s 88C. Therefore, in both the decisions to which reference has been made exemption certificate had been in operation and, therefore,
proceedings u/s 88D could be instituted for its revocation. That is not the situation in the instant case.
The third decision to which Mr. Christie has invited my decision is in Bai Jadav D/o Naginlal Amtharam v. Durlabh Ranchhod and Ors. 10 Guj
LR 727. It is a Division Bench decision. The facts of the case show that the proceedings for recovery of possession instituted by the landlord u/s
32T in pursuance of the exemption certificate granted to him u/s 88C had been pending before the Mamlatdar upon remand to him by the deputy
Collectors. The facts of that case further show that the deputy Collector had directed the Mamlatdar to decide the proceedings u/s 32T after the
proceedings u/s 88D had been decided. If the proceedings u/s 32T were pending, then the exemption certificate granted u/s 88C continued to be
in force and, therefore, proceedings u/s 88D could be instituted. That is not the situation in the instant case.
He has also invited my attention to the unreported decision of Mr. Justice Divan (as he then was) in special Civil Application No. 1521 of
1967 decided on 24th March 1970. In that case proceedings u/s 32T had not been instituted by the landlord. However, the facts further show that
the landlord had made an application u/s 38(2) of the Tenancy Act which had been pending. Pendency of the proceedings for recovery of
possession does not exhaust the exemption certificate. It is the final termination of the proceedings for possession which exhausts the exemption
certificate. Therefore, as long as the exemption certificate has not been exhausted proceedings can be instituted to revoke it. In the instant case the
exemption certificate granted to the landlord u/s 88G was finally exhausted no 9th April 1969. Therefore, on proceedings u/s 88D of the tenancy
Act could be instituted. It is, therefore, clear that the application which the tenant made to the State Government in may 1970 was a belated
application. It was thoroughly incompetent because more than a year prior thereto the proceedings u/s 32T had come to a final termination and the
exemption certificate had been exhausted. On the date when the tenant made the application u/s 88D the Landlord had got the final and
irrevocable right to recover possession of half the land and the tenant had finally and irrevocably become a statutory purchaser of the other half of
the land. Under the aforesaid circumstances, the view taken by the State Government that the application made by the tenant u/s 88D was
incompetent is correct and must be upheld. I therefore, find no substance in this petition. The petition, therefore, fails and is dismissed. Rule is
discharged with no order as to costs.