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Judgment
This Special Civil Application is directed against the order by the Government of Gujarat refusing to revoke the certificate granted under S. 88-C, Bombay Tenancy and Agricultural Lands Act (to be referred as BT & At Act) and dismissing the application under S. 88-D BT & AL Act, holding that the petitioner tenant has ailed to establish that the annual income of the respondent I. landlord is more than Rs. 1500/ -.
The respondent No. I is the occupant of survey Nos. 1944, 1940, 1114 Paiki, 1113 situated at Borsad and survey No. 314/1 situated at Vehera, the total area of which is 14 Acres and 13 Gunthas. In an application dt. Oct. 12, 1965 under S. 88-C BT & AL Act the Mamlatdar, Borsad, granted the certificate on Feb. 28; 1969 under the said provision. Under S. 88-C BT & AL Act, the occupant of the land is required to submit an application to the Mamlatdar within the prescribed period for a certificate that he is entitled to the exemption and the Mamlatdar on holding that the land leased by the occupant does not exceed the economic holding and the annual total income of the occupant landlord including rent does not exceed Rs. 1500/-, may grant the certificate. The order of the Mamlatdar under S. 88-C being appealable was challenged in appeal, but the appeal was At dismissed and the revision application before the Gujarat Revenue Tribunal was also dismissed. The orders were challenged in Special Civil Application No. 1311/71 under Art. 227 of the Constitution of Indian in the High Court and that was also dismissed on Oct. 8,1976. The proceedings under S. 88-C, therefore, reached the finality and after that the petitioner submitted an application on May 1, 1978 under the provisions of S. 88-D for revoking the certificate issued by Mamlatdar under S. 88-C. Under S. 88-D BY & AL Act if the State Government is satisfied in the case of the land referred to in S. 88-C -that the annual income of the landlord has exceeded Rs. 1500/- or that the total holding of such person exceeds the economic holding the certificate granted under S. 88-C should be revoked.
The contention of the petitioner was that the annual income of the respondent I has exceeded Rs. 1500/- and, therefore, the certificate should be revoked. Deputy Secretary, Revenue Department, exercising the power of the Government, considered the rival contentions and the evidence and rejected the application holding that the petitioner has failed to establish that the annual income of the respondent 1 is more than Rs. 1500/-. Government accordingly has decided on facts that the case for revocation of the certificate is not made out by the petitioner and accordingly dismissed the application under S 88-D BT & AL Act.
The Deputy Secretary exercising powers of the Government under the rules of business had not recorded the evidence before him but it appears that he had -directed the Collector and the Mamlatdar to record the evidence. The copy of the order is not produced and it is not clear from the contentions of the petitioner that the Government had directed the Collector to record the evidence Petitioner has stated in the petition that the Government had directed the Mamlatdar for holding the inquiry. It transpires from the affidavit filed by Shri A. K. Joti, the Collector, District Kaira that the Mamlatdar and A.LT. had recorded the evidence and the report of the preliminary inquiry was submitted to the Collector and the Collector had submitted the report to the Government. It is clear from the affidavit of the respondent No. 1 that the Mamlatdar had recorded the evidence and had examined 10 witnesses on the side of the petitioner and 3 witnesses for the respondent No. 1 Evidence recording was started on July 30, 1978 and was completed on Feb. 6, 1979:
It is submitted by Miss V. P. Shah for the petitioner that the Government could not have directed either the Collector or the Mamlatdar to record evidence and the officer exercising the power of the Government under the rules of business should have recorded the evidence himself.
x x x x 7. Division Bench of this High Court in Bai Jadav v. Durlabh Ranchhod (1969) 10 Guj LR 727 considered this aspect and observed that the procedure to be followd. by the State Government in the observance of the principles of natural justice need not conform to any recognized methods of judicial procedure and it is, therefore not necessary that the State Government proposing to make an order under S. 88D should itself conduct the fact finding inquiry or take evidence itself. It may direct the Collector or the Mamlatdar or any other appropriate officer to conduct the fact finding inquiry and to record the evidence led by the parties who might be affected by the order proposed to be made. What is necessary is to intimate the landlord about the application if made by the tenant and to give him an opportunity to show cause. Once the basic requirement is complied with the actual fact finding inquiry may be conducted and, evidence taken by the Collector or the Mamlatdar or any other appropriate officer and it need not be done by the authority exercising the power of the State Government. It is also observed that the inquiry under S. 88-D is for the purpose of determining whether the exemption certificate granted to the landlord should be cancelled and the burden would, therefore be upon the tenant or, in case of an ''inquiry started by the State Government suo motu, upon the State Government to establish that the annual income of the landlord has exceeded Rs. 1500/or his total holding exceeds an economic holding This judgment is an, apt answer to the submission of Miss V. P. Shah, learned Advocate for the petitioner.
to 12. x . x x x x. 13. The Deputy Secretary has considered the rival contentions and the evidence on record and has specifically observed that the petitioner has failed to establish that the annual income of the respondent 1 is more than Rs. 1500/-. That finding of fact is based on the evidence on the record and is not perverse. In Special Civil application under Art. 227 finding of the fact by the quasi judicial authority till it is established to be perverse, should be accepted.
It is stated that the petition is under Art. 226 of the Constitution as the --Government considering the revocation of the Certificate under S. 88-D are not the Tribunal.
As discussed above, the Government while exercising the power and jurisdiction under S. 88-D BT & AL Act is exercising quasi judicial powers. It is well settled that all agencies whether a Court or not, performing the duty of deciding a disputed question of right between the parties on behalf of and under the sanction of the State and in accordance with the State made laws are placed under the administrative and judicial control of the High Court. (See Motibhai Garbadbhai Vs. F.N. Rana and Others, ; and Ganibhai Kusalbhai and Another Vs. State of Gujarat and Others, . The quasi judicial powers exercised by the Government under S. 88-D BT & AL Act is, therefore, under the supervisory jurisdiction of the High Court under Art. 227 of the Constitution of India and, therefore, even though it is stated that the present petition is under Art. 226 it should be considered petition under Art. 227 of the Constitution of India. The general I principles of the supervisory jurisdiction conferred on the High Court under Art 227 of the Constitution of India, therefore, govern the exercise of the jurisdiction by the High Court. In Mohd. Yunus Vs. Mohd. Mustaqim and Others, it is observed in terms that the supervisory jurisdiction conferred on the High Courts under Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its, authority" and not to correct an error apparent on the face of the record, much less an error of law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision
Even if the petition is considered to be under Art. 226 of the Constitution of India, this Court will not interfere into the finding of the fact and the decision by the Government exercising the quasi-judicial powers especially when the, finding is not perverse and does not suffer from any infirmity requiring the exercise of the extraordinary jurisdiction of the High Court under Art 226 of the Constitution.
to 19. x X x x X X.
Mr. V. J, Desai, learned Advocate Or the -respondent I submitted that ''the application under S. 32-T BT & AL Act for the possession of the land is already filed 0 May 26, 1969 and that application is stayed by the High Court and is pending an, therefore, after application is filed the petitioner has no right to file the revocation application underS. 88-DBT & ALAct. Shri Desai sought support to his-contention from the judgment of the Bombay High Court in Atmaram Onkar Talele Vs. Ananda Shrawan Kolambe, . It is true that such observation is made in that judgment; but Shri Desai had to concede that in BT & AL Act as applicable to Maharashtra, there is no provision like the provision of clause (iv) of sub-see. (5) of S. 32-T) BT & -AL Act as applicable to Gujarat. It provides that the landlord shall not be entitled to the possession of the land if an application under clause (IV) of sub-sea (14 of S. 88D has been made and has not been rejected. The! said provision, therefore, clearly contemplate$ the pendency of the application under S. 32i T BT & AL Act by the landlord and prohibit the order of possession of the land till the-Dependency of the application under S. 88 till that application is rejected. In Chaturbhai Ashabhai Parmar v. Motibhai Jorabhai Patel (1976) 17 Guj LR 719 similar point came up .for consideration before the single Judge of this High Court. In that case the application under S. 88-D was submitted after the decision of the Gujarat Revenue Tribunal awarding the possession of the land an& therefore, it was held that the effect of S. 88-C did not exist and, therefore, the question of revocation did not arise. Shri Desai submitted that the observation that judgment are too broad and require reconsideration. The ratio of the judgment is that the application under S. 88D BT & AL Act can be submitted by the tenant for revocation of the certificate issued under S. 88-C BT & AL Act, till tenancy is terminated by notice under the BT & AL Act and the order is passed by the Mamlatdar I or possession of the land. Till the tenancy is terminated by the above said Acts the effect of the certificate issued under S. 88-C BT & AL Act exists. In view of the fact that I am dismissing the petition for the other reasons stated above, I do not think it necessary to decide this point.
The result is, the petition fails and should be dismissed. Petition is dismissed. Rule discharged with no order as to costs.
xx xx xx 23. Petition dismissed.