1. This reference raises an important question as to the jurisdiction of the Collector under Section 120 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (Bombay Act No, 99 of 1958), and it arises in this way.
2. Survey No. 39/1, area 19.34 -acres of village Wadegaon, District Akola belonged to Madhao, the respondent No. 2 in the petition. On 20th October 1964 Madhao the respondent No. 2 made an application for possession under Section 120 of that Act against Kashiram the present petitioner alleging that he Madhao was cultivating the fields in the years 1962-63 and 1963-64 but that the petitioner Kashiram took unlawful possession without any right in the year 1964-65. Kashiram was merely appointed to help Madhao and his family in the cultivation of the lands and taking advantage of his position he entered into wrongful possession over the lands. The respondent No. 2 alleged that the petitioner was a mere trespasser. The application was filed before the Sub-Divisional Officer Akot who has the powers of the Collector under Section 120.
3. In reply to the application the petitioner contended (1) that he was a tenant and, therefore, in lawful possession. The respondent No. 2 had given -the field to him for cultivation 'on batai terms' and the petitioner had accordingly cultivated the same and acquired the rights of a tenant over the same. (2) that the Sub-Divisional Officer had no jurisdiction to evict the petitioner under Section 120 of the Act; (3) that 'the applicant (the present respondent No. 2) should first get a suitable order from the Court of the Tahsildar that this N.A. (the petitioner) is not a tenant and it is only then 'that he can make his present application under Section 120. This be treated as preliminary ground and the application be dismissed. To decide whether a person is or Is not a tenant is exclusive jurisdiction of the Tahsildar.'
4. The Sub-Divisional Officer, Akot, dismissed the application under Section 120 holding that the petitioner Kashiram was in cultivation in the years 1962-63 and 1963-64 and that the respondent No. 2 Madhao had failed to show that he had cultivated the field personally during those years. He pointed out that the entries in the crop statement for the said two years were in favour of the petitioner and the petitioner had also filed receipts for the payment of land revenue for those years. He did not rely upon the evidence of Waman Narayan who had been examined on behalf of the respondent No. 2. Taking that view the Sub-Divisional Officer dismissed the application under Section 120 before hint on the merits. He however did not decide the question raised on behalf of the petitioner that he (Sub-Divisional Officer) had no jurisdiction because the petitioner had raised the issue that he was a tenant.
5. In a Revision filed before the Maharashtra Revenue Tribunal, that Tribunal has reversed the decision of the Sub-Divisional Officer holding that the reasons given by the Sub-Divisional Officer did not justify the dismissal of the application. The Tribunal discussed the several reasons in detail in paragraph 2 of its order and pointed out that in the years 1960-61 and 1961-62 the respondent No. 2 had cultivated the field and that was corroborated by the evidence of his brother Waman Narayan. The field was also being cultivated by the father of the respondent No. 2 until he died ,on 26th December 1960. The petitioner's plea moreover that he had been cultivating the field for the last five years before he was examined in March 1965 was raised for the first time in his evidence and had not been put forward even in his written statement. The crop statements for the years 1960-61 and 1961-62 belied his version. There was moreover no evidence to prove the alleged contract of Batai between the petitioner and the respondent No. 2 as alleged by the petitioner. As regards the land revenue receipt the Tribunal held that no conclusion could be drawn from the land revenue receipt on the question of the lease in dispute in the circumstances of the case. The Tribunal held, therefore, that the petitioner had no right to take possession of the respondent No. 2's land and was liable to be evicted under Section 120(c) of the Act.
6. It is against this order that the special civil application is filed, and when it came up before our brother Padhye on the 29th February 1968 he felt that there was a conflict of decisions in this Court as to the scope and extent of the Collector's Jurisdiction under Section 120 and has therefore referred two questions, for our opinion:
'(1) In proceedings for summary eviction under Section 120 of the Bombay Tenancy and Agricultural Lands Act, 1958 where a question is raised by a party thereto that he is a tenant, has the Collector jurisdiction to go into that question, and if so, under what circumstances?
(2) If the answer to the first question is in the negative, then what is the procedure that should be followed by the Collector in those circumstances?' The Act referred to in the first question is the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 99 of 1958. We need not here set forth the differences in view in the several decisions because they will appear when we consider those decisions.
7. Section 100 of the Act lays down that for the purposes of the Act the following is one of the duties and functions to be performed by the Tahsildar:--
(2) to decide whether a person is a tenant, a protected lessee or an occupancy tenant;'
It is clear that Section 100 by itself merely confers jurisdiction on the Tahsildar to decide whether a person is a tenant. By virtue of Section 124 of the Act the jurisdiction of Civil Courts 'to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Tahsildar......' is barred--Section 124 thus refers back to Section 100 and to the several powers given to the Tahsildar to settle, decide or deal with the subjects or questions mentioned in the various clauses of Section 100. We are here concerned only with the power to decide the question 'Whether a person is a tenant ......' conferred by Section 100(2). To that extent the Tahsildar it may be said, is given jurisdiction to the exclusion of the Civil Courts to decide whether a person Is a tenant.
8. Section 120, however, gives jurisdiction to the Collector of summary eviction and Section 120 is worded as follows:--
'120. Any person unauthorisedly occupying or wrongfully in possession of any land-
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act,
(b) the management of which has been assumed under the said provisions or
(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, ..... may be summarily evicted by the Collector after such inquiry as he deems fit.'
9. In the present case In a proceeding which the respondent No. 2 commenced for the summary eviction of the petitioner under Section 120(c) the petitioner has raised the plea that he is a tenant and having raised that plea, he has further contended that the Collector would have no jurisdiction to entertain the proceedings for summary eviction against him because the question whether or not he is a tenant has to be decided only by the Mamlatdar under Section 100(2).
10. Before we consider the question one thing must be made clear, and that is, that we are not concerned with Section 124 in the present case. As we have said it is that section which bars the jurisdiction of the Civil Courts and by so barring that jurisdiction confers exclusive jurisdiction on the Tahsildar to decide whether a person is a tenant, but Section 124 cannot apply in the present case because in terms the section applies only to Civil Courts. It begins with the words 'No Civil Court shall have jurisdiction to settle, decide or deal with.......' etc. The power of the Collector under Section 120 is not controlled as the power of the Civil Court is controlled by Section 124. The Collector enjoys a power under Section 120, which is as untrammelled by any other jurisdiction such as the Tahsildar enjoys under Section 100. Therefore here the question is not of any competition between the restricted jurisdiction of the Civil Courts and the somewhat unrestricted jurisdiction of the Tahsildar but the question is of a competition between two equal and independent jurisdictions conferred upon two Revenue Authorities namely, upon the Collector by Section 120 and upon the Tahsildar by Section 100(2). The two jurisdictions undoubtedly overlap and it Is clear that in a large number of cases they will overlap. The question is how are the provisions relating to the two jurisdictions to be construed in cases where they overlap
11. The Tenancy Act is not merely a law which governs the relations of landlords and tenants. It is not only content to provide for the status and rights of tenants or their relationship with their landlords but it purports to provide for many other subjects. In the interests of the general public it also purports to regulate and impose restrictions on the transfer of agricultural lands and of dwelling houses and lands appurtenant thereto and sites used for allied pursuits belonging to or occupied by agriculturists. agricultural labourers, artisans and persons carrying on allied pursuits. It also purports to provide for the assumption of the management of agricultural lands in certain circumstances, and other matters. Its provisions therefore do not merely deal with landlords and tenants but many other persons e.g., trespassers on agricultural lands. Its principal provisions no doubt relate to the acquisition, relinquishment, surrender or transfer of title to or by a tenant and to the safeguarding of the possession of the tenant and the landlord. With the provisions as to titles we are not here concerned.
12. We are here concerned only with the question of possession and on the question of possession between landlords and tenants the Act has made careful provisions. Section 36 of the Act prescribes the procedure for taking possession. Sub-section (1) provides that 'a tenant or an agricultural labourer or artisan entitled to possession of any land.....Or as a result of eviction in contravention of sub-section (2) may apply in writing for such possession to the Tahsildar.' Subsection (2) deals with the landlord and it is couched in different language. It says 'no landlord shall obtain possession of any land..... held by a tenant except under an order of the Tahsildar' save as provided in Sub-section (3-A) and for obtaining such order he has to make an application within a certain period. Similarly where a landlord has obtained possession of land on the ground that it is required for personal cultivation under Section 38 and the conditions laid down in that Section are not fulfilled he is bound to restore possession of the land back to the tenant. The liability to restore possession is that of the landlord, but if he fails to restore possession then he is liable to be dealt with under the provisions of Subsections (3) and (4) of Section 52. These are some of the specific remedies open to 1he tenant and the landlord under the Act in respect of possession of land of such tenant or landlord. These provisions have to be read in the light of the definitions of 'tenancy' and 'tenant' in Sub-sections (31) and (32) of Section 22. 'Tenancy' means the relationship of landlord and tenant, and 'tenant' means a person who holds land on lease and includes-
(a) a person who Is deemed to be a tenant under Sections 6, 7 or 8,
(b) a person who is a protected lessee or occupancy tenant and the word 'landlord' shall be construed accordingly;
These provisions therefore serve to emphasise that Sections 36 and 52 are limited only to the relationship of landlord and tenant, and would not be available in other cases. In fact, it has been held in this Court that if possession is asked for by a person not in his capacity of landlord or tenant Section 29 would not be available. See 1955-57 Bom LR 65, Shankar Raoji v. Mahadu Govind.
13. We have referred to these provisions of the Act in order to emphasise the distinction between these provisions and the provisions of Section 120 of the Act While the provisions we have referred to above deal with the question of possession of a tenant or a landlord. Section 120 deals with the subject of possession by trespassers (we use that word for want of a more compendious expression to cover all the cases contemplated in Section 120). Section 120 refers to a person 'unauthorisedly occupying or wrongfully in possession'. These are key words governing the whole section and laying down the first condition to the applicability of Section 120 namely, that it must be shown to the Collector that the land has been unauthorisedly occupied by or is wrongfully in the possession of any person. 'Land' is denned in Section 2(17) to mean (see clause (a)) land which is used or capable of being used for agricultural purposes and includes the sites of farm building appurtenant to such land. We are not concerned with Clause (b) of the definition because it does not apply to Section 120. Such land need not necessarily be land in the possession of a landlord or a tenant. Section 120 in that respect is wider than the provisions regarding possession in Sections 36 and 52.
14. The other important qualification or condition governing the whole of Section 120 is contained in the penultimate clause 'and the said provisions do not provide for the eviction of such person', In other words, if there is any other provision in the Act, which a person out of possession can invoke, in order to be restored to possession. Section 120 will not apply. The words 'the said provisions' obviously refer back to the expression 'the provisions of this Act' contained in clause (a) of Section 120. It was urged by Mr. Deshpande on behalf of one of the interveners that the words 'the provisions of this Act' in Clause (a) of Section 120 do not mean the whole of the Act, but only such of these provisions as relate to transfers, because that is the subject dealt with in Clause (a), such as for Instance the provisions prohibiting transfers such as Section 51 or 57. It was urged that the expression 'the provisions of this Act' must be read in relation to the context in which it occurs and that it is used in the context of transfer by the act of parties or by operation of law and it was intended therefore to refer only to such provisions of the Act. We are unable to accept this contention because the subject or context in which they are used is really not transfers but In the context of any 'persons unauthorisedly occupying or wrongfully in possession of any land'. Clauses (a) and (b) merely enumerate the different categories of unauthorised occupation or wrongful possession of any land under the Act and Clause (c) is a general residuary Clause. To limit the words 'provisions of this Act' only to transfers would result in making Clause (c) totally inapplicable, .for the subject of transfer is already dealt with specifically in Clause (a). When the Act says 'under the provisions of this Act' it means any of the provisions of the Act, unless there is an express exclusion or exclusion by necessary implication in any particular section. The use of the words 'the said provisions' in Clauses (b) and (c) and in the Clause 'and the said provisions do not provide for the eviction of such person' therefore refer to the provisions of the entire Act. This Clause moreover qualifies not merely Clause (c) of the Section, but all the three Clauses (a), (b) and (c). This has been held in Durgaben v. Moria Bavla, : AIR1956Bom706 . The other conditions which must be fulfilled are those laid down in Clauses (a), (b) and (c) of the section itself.
15. In construing Section 120 it must moreover be remembered that it creates a summary remedy, summary in the sense, that the Collector has not to make a judicial inquiry but only 'such inquiry as he deems fit'. This of course does not mean that he need not make any inquiry whatever, but clearly that he must inform himself as best he can from the records available in his department or the material placed before him by the parties. That it is a summary remedy and that the Collector has only to make 'such inquiry as he deems fit' does not, however, absolve the Collector from making a proper order giving reasons for his conclusions. As we have pointed out above, the regular remedies for disturbance of possession are reserved for disturbance of possession of tenants and landlords, such as, for instance those prescribed in Sections 36 and 52. The summary remedy is reserved for trespassers.
16. For the very reason that the remedy is a summary remedy the section arms the Collector with plenary and drastic powers of the widest amplitude. The section must therefore be carefully applied and strictly construed. That is why also, we conceive, the legislature advisedly did not entrust the exercise of that power to the Tahsildar who is one of the lower officers in the Revenue hierarchy, although most of the other powers under the Act have been so entrusted, but entrusted it to a superior revenue officer like the Collector who is the highest officer in a District.
17. Having analysed the provisions of the law we turn to consider the question which arises viz., which authority has jurisdiction where a person applies under Section 120(c) saying that the opponent is in unauthorised occupation or wrongful possession or as is found in the present case a trespasser but the opponent in reply pleads that he is a tenant?
18. We have already said that Section 124 does not apply in the instant case and there is no express exclusion of jurisdiction by the provisions of Section 100 so far as the Collector's powers under Section 120 are concerned. Thus here we have two provisions in the Act of equal force, one giving jurisdiction to the Tahsildar to decide whether a person is a tenant and the other giving jurisdiction to the Collector to decide whether any person is unauthorisedly occupying or wrongfully in possession of any land. It seems to us that where such a conflict arises in an application under Section 120, the Collector will have to see whether in substance the application before him is an application complaining of unauthorised occupation or wrongful possession of any person in the first place and if he comes to the conclusion that such a person is unauthorisedly occupying or wrongfully in possession he would have jurisdiction under Section 120 even if that person raises the plea that he is a tenant. The mere raising of the plea would not as in the case of the Civil Court, oust the jurisdiction of the Collector. The Collector will have to look to the substance of the matter and decide whether it is a dispute regarding unauthorised occupation or wrongful possession or it is in substance a dispute regarding tenancy. If the latter, he must refer the matter to the Tahsildar. If the former, he will have jurisdiction to decide it. It will not be sufficient to oust the jurisdiction of the Collector for a person to say that he is a tenant if on the face of the material before the Collector it appears to him that the plea of tenancy is one which cannot reasonably be raised or is not bona fide or the Collector comes to the express conclusion that it is raised mala fide. This may be difficult to decide in given cases, but in the absence of specification by the law as to whose jurisdiction is to prevail, that appears to us to be the only test to indicate the dividing line between two overlapping jurisdictions. The Collector must of course also see that the following conditions (which we have already discussed above) are fulfilled; (1) that a person is unauthorisedly in occupation or wrongfully in possession; (2) that the other provisions of the Act do not provide for the eviction of such a person and (3) that the conditions required by Clauses (a), (b) and (c) are fulfilled; (4) in deciding the application the Collector must apply his mind to the material before him and because the remedy is summary it will not be enough for him to say 'sic volo, sic Jubeo' ('I wish it therefore it shall he'). He must consider such material as he has before him and write an order giving his reasons. (5) The Collector must also bear in mind that the power which he exercises is a very drastic power and we have no doubt that he will exercise it with care, construing the provisions strictly in case of doubt. (6) In cases where complicated questions of Jaw and fact arise the Collector moreover has a discretion to refer the parties to the Civil Courts or leave them to take any other remedy that they may be entitled to.
19. The view which we have taken is supported by some of the decisions which have been referred to. It is necessary to refer to these decisions because the view taken has not throughout been consistent, Most of these cases are cases under the parallel provisions of Section 84 of the Bombay Tenancy and Agricultural Lands Act 1948. Those provisions are identical with the provisions of Section 120 of the Vidarbha Act. The decisions therefore under the Bombay Act are equally applicable under the Vidarbha Act
20. The first decision pointed out to us is that of a Division Bench of this Court (Gajendragadkar and Gokhale JJ.) in Spl. Civil Appln. No. 278 of 1956, D/-10-4-1956 (Bom). There the application was made under Section 84 of the Bombay Act by a person claiming to be the owner of the land and alleging that the opponent was a trespasser. The opponent claimed to be a tenant The Deputy Collector held that the opponent who was in possession was a trespasser and ordered summary eviction. The plea was raised that the Deputy Collector would have no jurisdiction to deal with the matter since the opponent had claimed that he was a tenant but both the Deputy Collector as well as the Revenue Tribunal rejected that plea. The Division Bench of this Court affirmed this view of the Deputy Collector and the Tribunal, This Court held that the opponent was a trespasser and since the provisions of the Bombay Tenancy Act did not provide for a remedy for the eviction of such a trespasser Section 84(c) would apply and the Deputy Collector would have jurisdiction under Section 84 (c) to evict the opponent. As regards the contention that before such a proceeding could be adopted, it was incumbent upon the applicant to obtain a decision from the Mamlatdar under Section 70 (b) of the Act that the opponent was not a tenant, it was expressly held rejecting that contention, that it was only when an application could be made under Section 29 of the Act (corresponding with Section 36 of the Vidarbha Act) that the question of the examination of the status of the opponent as a tenant could possibly arise but since no application could be made under Section 29 against a trespasser the question of determination of the status of the opponent as a tenant by the Mamlatdar would not arise. The Court held that so far as the trespassers are concerned the only provision that could be invoked is the one contained in Section 84 of the Act. That view with respect was a correct view taken of the provisions of that Act.
21. Then we have a decision of another Division Bench (Mudholkar and Patel JJ.) in Anjalibai Ramchandra Yevlekar v. Shankar Bala Patil, Spl. Civil Appln. No. 3207 of 1958, D/- 10-2-1959 (Bom). In that case Anjalibai had made an application under Section 84 of the Bombay Tenancy Act to recover possession on the ground that the opponent Shankar Bala was her servant; that he had refused to execute a service agreement but had continued in possession and that therefore he was unauthorisedly in possession of the property and should be evicted. The Assistant Collector, Northern Division, Kolhapur held that she was entitled to recover possession of five fields since the opponent Shankar Bala was her servant and not a tenant, but as regards four fields he held that Shankar Bala had been on the land since 1954-55 as a tenant and possession had been taken from him without recourse to the Mamlatdar and that therefore the petitioner Anjalibai was not entitled to claim possession of those lands. In revision the Revenue Tribunal took the view that the application made by Anjalibai should have been treated as an application under Section 29 though she had made an application expressly under Section 84 and should be dealt with under the Tenancy Act. It was against that decision that Anjalibai the owner had applied to the High Court.
22. The Division Bench held that Section 29 was the only section which provided for an application either by a landlord or a tenant for recovery of possession of the land to which they were entitled under the provisions of the Act. Section 84 on the other hand provided a summary remedy and only in cases where possession is sought by a person entitled to possession from a person who is unauthorisedly in possession of the property. They also pointed out that in order to avoid overlapping of the two provisions a specific provision has been made by way of proviso to Section 84 that under that section the Collector could act only If the provisions of Tenancy Act do not provide for the eviction of such persons. As regards the contention that the Mamlatdar must first decide the question whether Shankar Bala Patil and others were tenants under Section 70 (b), the Division Bench observed:
'It is not possible In view of the provisions of this Act to accept the argument that merely because Section 70 provides as one of the duties of a Mamlatdar to decide the question whether or not a person is a tenant or not the matter must necessarily be referred to him or must be decided by him..... If one reads the Act as a whole there is no doubt that the Collector had in him the necessary power of determining the questions involved when he was called upon to take action under Section 84.'
This Court, therefore, clearly held that where the conditions laid down by Section 84 are fulfilled, the Collector would have the power to decide whether a person was in unauthorised occupation or wrongful possession even though it involved holding incidentally that he was not a tenant. The Division Bench relied upon art earlier decision of the Division Bench in Spl. Civil Appln. No. 278 of 1956, D/- 10-4-1956 (Bom). The same view was taken in Sarjerao Shripati Jared v. Namdeo Magutrao Jared, Spl. Civil Appln. No. 3105 of 1958, D/- 1-4-1959 (Bom) and in Rural Product Co. Ltd. v. Laxman Davlu, Spl. Civil Appln. No. 1370 of 1962, D/- 15-7-1963 (Bom). With respect, these decisions took the correct view of the provisions of Section 84 and the same should be the view to be taken under the identical provisions of Section 120 of the Vidarbha Act.
23. Then we come to a decision in which apparently a contrary view was taken and on which strong reliance was placed by Mr. Chandurkar. That is a decision in Shivanarayan Motilal Kabre v. Fakira Bala Roham, Spl. Civil Apnln. No. 529 of 1958, D/- 23-4-1958 (Bom) by a Division Bench consisting of Chainani J. as he then was (later C. J.) and Tarkunde J. In that case 'A' applied under Section 84 of the Bombay Tenancy Act for obtaining possession of the land from 'B' on the ground that he was a trespasser and was in unauthorised occupation of the land. 'B' contended that he was a tenant. The contention was accepted by the Prant Officer who upon that view dismissed the application under Section 84. Before the Division Bench the order of the Prant Officer was really not challenged at all, but only his jurisdiction to decide the application on the ground that 'B' had raised the contention that he was a tenant and the Prant Officer had no jurisdiction to decide that Issue. The Division Bench summarily ruled out the contention holding 'This argument about the Prant Officer not having jurisdiction in the matter was not urged by the petitioner before the Bombay Revenue Tribunal. It cannot, therefore, be urged now'. Thus so far as that decision was concerned the only point raised in the Special Civil Application was negatived on the short ground that it had not been raised before the Revenue Tribunal. There was no decision as such on the question of jurisdiction. There the matter should have ended but in the concluding portion of the judgment the Division Bench went on to make certain observations, which are the very basis of the contention raised by Mr. Chandurkar. Those observations were:
'We might, however, observe that under the Tenancy Act, it is only the Mamlatdar who can decide whether a person is or is not a tenant and that consequently when opponent No. 1 raised the contention that he was the petitioner's tenant the Prant Officer should have directed the parties to approach the Mamlatdar and obtain a decision from him whether the opponent No. i was a tenant of the petitioner.
With these observations, the rule will be discharged with costs'.
Now in the first place these remarks were expressly stated by the Division Bench itself to be mere observations and they cannot be taken to be the decision in the case. The remarks moreover were clearly obiter because the case was decided on the short ground that the point had not been raised. We may also observe that the earlier decisions to which we have referred namely, those in Spl. C. A. No. 278 of 1956 (Bom) in Spl. C. A. No, 3207 of 1958 (Bom) and in Spl. C. A. No. 3105 of 1958 (Bom) were not referred to. We may say here that we are not In agreement with the said observations made in that case.
24. In two decisions of two Division Benches, the decision in Spl. C. A. No, 529 of 1958 (Bom) was relied on but was distinguished. The first of these is Spl. Civil Appln. No 1003 of 1959 (Bom), Keshav Hari Joshi v. Bhaga Mahadu Kanavade, decided on 7th January 1960 by the Division Bench consisting of S. T. Desai and V.S. Desai JJ. The petitioner in that case had filed an application under Section 84 and the respondents 1 and 2 had raised the contention that they were protected tenants of the lands in dispute. In that case the facts were glaring. The petitioner had filed a suit in the court of the Mamlatdar, Akola for possession on the ground that he had been unlawfully dispossessed by the respondent and one Gangaram Kalu Kanavade. That suit after a chequered career was ultimately heard and decided by the Mamlatdar on the 19th August 1954 in favour of the petitioner. In a revision the Prant Officer confirmed the view taken by the Mamlatdar that the respondents had unlawfully dispossessed the petitioner. The petitioner then took execution proceedings and possession of the lands was handed over to the petitioner. At the time possession was being handed over the respondent No. 2 had obstructed delivery of possession and she was prosecuted and convicted and ultimately possession was delivered to the petitioner on 24th February 1956, but the petitioner alleged that the respondents had forcibly taken back possession in July 1956. In spite of all these proceedings and in spite of the fact that the petitioner has been found to be the lawful owner and entitled to possession, when an application was made under Section 84 against the respondents for eviction on the ground that they were in unlawful possession, they pleaded that they were protected tenants and the matter should be decided under Section 70(b) of the Act by the Mamlatdar alone and not by the Collector before whom the proceedings under Section 84 had been filed. The Division Bench held 'very briefly stated, the argument is that that section (Section 70) can have no operation when proceedings have been taken in a competent court by a person and the competent court has held that the other party is a trespasser and possession has been directed to be handed over to him and has in fact been handed over to him. There is. in our opinion, substance in this contention.'
25. On behalf of the respondent it was contended that the Collector cannot in any proceeding under Section 84 decide the matter whether the respondent who claims to be a tenant is or is not a tenant or is a trespasser. This question can only be decided by the Mamlatdar. The Division Bench held that they were unable to accept that contention 'as there is nothing in Section 84 which compels us to reach any such undesirable conclusion'. They referred to the decision in Spl. C. A. No. 3207 of 1958 (Bom) and followed it. In this case therefore also the principle was accepted that if the requirements of Section 84 are fulfilled and the conditions prescribed therein exist, the Collector would have jurisdiction to decide the application before him notwithstanding that it involved the decision in an ancillary way on the question whether the respondent was a tenant or not.
26. To the same effect is the decision in Dinkarrao Aburao Shirole v. Jayawant Rao Tukaram Sawant, Spl. C. A. No. 693 of 1962, D/-22-3-1963 (Bom) by another Division Bench (Tarkunde and Gokhale JJ.). In that case also after protracted proceedings the respondent before the Division Bench had lost and was ordered to deliver up possession. A preliminary partition decree has been passed against him, then a compromise had been effected on the basis of which the dispute was settled and under the compromise the disputed lands were given in possession of the petitioner. Mutation had also taken place and a joint purshis had been passed staling that the dispute had been settled. It appears, however, that in the final mutation some mistake had crept in and the petitioner's case was that taking advantage of that mistake the 1st respondent had made an application that he should be shown as a tenant of the disputed lands. The mutation proceedings showed that possession had actually been delivered to the petitioner and no appeal had been preferred against the decision in those proceedings. In answer to the application of the respondent to be shown as a tenant the petitioner had applied under Section 84 for his eviction. The Prant Officer overruled the preliminary contention of the 1st respondent that he had no jurisdiction to try the application and held that the 1st respondent was a trespasser. The Division Bench observed 'It seems that taking advantage of a mistake which crept in the mutation record, respondent No. 1 put up a vexatious claim that he was a tenant some time in September 1960. The fact that he had no evidence to lead before the Prant Officer and the further fact that he even refused to enter the witness box to enable the petitioners to cross-examine him would show that he himself was conscious that he had no substantial basis to support his claim that he was a tenant'. Though the Division Bench used the word 'vexatious', it is clear that what they intended to say was that the 1st respondent's claim was a mala fide claim. The case, therefore, is again an authority for holding that if the plea of tenancy is found not to be bona fide, but mala fide, the jurisdiction of the Collector under Section 84 would not be ousted upon such a plea.
27. We may also refer to a recent decision which was not referred to at the Bar during the arguments, but which has been brought to our notice subsequently, namely the decision in Spl. C. A. No. 749 of 1966, D/- 24-9-1968 (Bom) by a Division Bench consisting of Patel and Wagle JJ. where the provisions of Section 84 have been more fully dealt with. In connection with those provisions the Division Bench observed 'It must, however, be remembered that the procedure is summary and there is no appeal against his decision. It would, therefore, be clear that the procedure is not suited to deciding complicated and serious questions of title. In cases where the occupant raises a contention regarding his title which appears to be unsupported by any prima facie reasonably reliable evidence and is such as he is entitled to consider in inquiries under the Land Revenue Code or the Tenancy Act he would be justified in considering the question and decide whether he is in unauthorised occupation of the land, A fortiori this would be so. where the contention Is patently false or untenable. If, however, there are complicated questions of law and facts involved, then he would have no jurisdiction to decide the questions.' With respect we are in agreement with this statement of the law.
28. In spite of all these authorities directly upon the provisions of Section 84, which would equally apply to Section 120 of the Vidarbha Act counsel urged that the view taken in them is wrong because of the decision of this Court in Nivrutti Laxman Kondobahiri v. Shivdayal Laxminarayan Sarda, 61 Bom Lit 957 = AIR i960 Bom 56 and upon the decision in : AIR1956Bom706 . No doubt in 61 Bom LR 957 :AIR 1960 Bom 56 it was held at pp. 959 and 960 (of Bom LR) = (at pp. 57 and 58 of AIR) that the power conferred upon the Mamlatdar under Section 70 (b) to decide whether a person is a tenant, would include a power also to decide that a person is not a tenant, whether the application is made by the landlord or the tenant. At page 960 the Full Bench held 'under Clause (b) of Section 70 of the Act, the Mamlatdar has jurisdiction to determine whether a person is a tenant. He can, therefore, also decide that a person is not a tenant. If he can decide this question on an application made to him by a tenant, it is difficult to understand why he should not be able to decide this question when the application is made by the landlord. In either case, the question which the Mamlatdar will have to determine is whether the relationship of landlord and tenant exists between the parties. The jurisdiction to decide this question vests exclusively in the Mamlatdar and the Civil Court is not competent to decide it.' The present argument is founded upon these remarks of the Full Bench. It is urged that the Full Bench has clearly said that it is the exclusive jurisdiction of the Mamlatdar to determine whether a person is a tenant as also to determine that a person is not a tenant. Therefore, it is urged that when in an application under Section 84 or Section 120 of the Vidarbha Act, the person alleged to be in unauthorised occupation or wrongful possession, alleges that he is a tenant also both the question whether he is a tenant at all as well as the question whether he is not a tenant, would fall to be determined only by the Mamlatdar and not by the Collector.
29. The Full Bench case was not decided with reference to the provisions of Section 84 or the analogous provisions of Section 120 of the Vidarbha Act. It was only concerned with construing the meaning of the words 'to decide whether a person is a tenant, a protected lessee or an occupancy tenant' occurring in Section 70 (b) of the Bombay Act or Section 100(2) of the Vidarbha Act. It was in that connection that they observed that the negative aspect of the question that a person is not a tenant is included within the jurisdiction to decide the affirmative aspect viz.. whether a person is a tenant. This decision was given in a case where there was no question involved of a competition between the two jurisdictions of the Mamlatdar and the Collector created by Section 70(b) and Section 84. We do not think therefore, that the remarks made in the context of that case would be binding upon us. So far as the case in : AIR1956Bom706 is concerned, an order was expressly passed in that case in favour of the landlord under S. 29(2) of the Bombay Act for possession against his tenant on the allegation that the tenant had surrendered his lease. It was thereafter that the tenant applied to the Collector under Section 84 of the Act for summary eviction of the landlord alleging that notwithstanding the order of the Mamlatdar he in fact had continued to be in possession but that he was dispossessed by the landlord. It was in the light of those facts that the Division Bench held that that was a dispute purely between a landlord and a tenant and therefore the question of possession would fall to be determined only under Section 29 which expressly deals with that subject and not under Section 84. They also pointed out that Section 84 itself excludes such an application by virtue of the words used in that section 'and the said provisions do not provide for the eviction of such person.' Since Section 29 made provision for the eviction of the landlord in that case, Section 84 would be inapplicable. In the present case it is clear that Kashiram has been found not to be a tenant but a trespasser and upon that finding only Section 120 would be attracted (or Section 84 of the Bombay Act) and not Section 36 or (Section 29 of the Bombay Act).
30. In the view which we take we answer the two questions referred as follows:--
Question No. 1: In proceedings for summary eviction under Section 120 of the Bombay Tenancy and Agricultural Lands Act, 1958 where a question is raised by a party thereto that he is a tenant, the Collector would have jurisdiction to go into that question provided the conditions laid down in Section 120 are strictly fulfilled.
Question No 2: In view of the answer to the 1st question the 2nd question does not arise.
The papers will now be returned to the learned single Judge for decision of the Special Civil Application.
31. Reference answered.