1. This petition by the landlord arises out of an application purported to have been filed under Section 36(2) read with Ss. 43(14-A) and S. 49-A(5) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereinafter referred to as the Tenancy Act. This application came to be filed before the Tenancy Tahsildar, Achalpur. In this application the petitioner had alleged that he was the owner of Survey No. 3, area 35 acres 21 gunthas of Mouza Jamapatki, of taluq Achalpur, which was cultivated by respondent No. 2 Bankatsingh as a tenant. According to the petitioner, Bankatsingh had in his personal cultivation land more than three family holdings and the purchase of the land had thus become ineffective by the statutory provisions. He, therefore, prayed that the land in the possession of the tenant should be put in his possession. The tenant filed a reply admitting that besides field S. N. 3, he had his own cultivation to the extent of three family holdings. The Naib Tahsildar treated the application as one under Section 21 of the Tenancy Act and passed an order purporting to be one under Section 36(3) of the Tenancy Act that the landlord should be put in possession of the whole field.
2. The Assistant Collector, Achalpur, exercised his revisional jurisdiction suo motu and came to the conclusion that the application which was filed on 26-12-1967 was barred having regard to the provisions of Section 36(2) of the Tenancy Act as it was not made within two years from 1-4-1963 which was the date for statutory transfer of ownership under Section 49-A of the Tenancy Act. He also held that since in respect of the holding of the tenant proceedings under the Ceiling Act were already pending, the Naib Tahsildar should have stayed the proceedings before him. He, therefore, set aside the order of the Naib Tahsildar. A revision application filed against this order before the Maharashtra Revenue Tribunal was rejected. The Tribunal took the view that the proper authority to deal with the question, whether the land was deemed to have been surrendered under Section 49-A(5) of the Tenancy Act, was the Agricultural Lands Tribunal and the Naib Tahsildar had no jurisdiction in entertaining an application under Section 36. An additional finding which the Tribunal gave was that assuming that the Naib Tahsildar had jurisdiction, the application was patently barred by limitation. The revision application thus came to be dismissed. These orders are challenged by the petitioner in this petition.
3. The learned counsel appearing on behalf of the petitioner contends that the application was in substance an application for enforcing the right which had accrued to the landlord by virtue of the statutory surrender which had come into effect by virtue of Section 49-A(5) of the Tenancy Act. But, according to him, since such a surrender as contemplated by Section 49-A(5) was to be treated as if it was a surrender under Section 20 and the provisions of sub-sections (1) and (2) of S. 21 applied to such a statutory surrender also, the jurisdictions 20 and 21 of the Tenancy Act being with the Tahsildar, the application was rightly made to the Tahsildar and the Tahsildar had jurisdiction to pass an order for possession.
4. It is difficult to accept the argument that the Tahsildar had any jurisdiction to deal with the claim made by the landlord on the footing that there has been a statutory surrender under Section 49-A(5) of the Tenancy Act. Section 49-A(5) of the Tenancy Act provides that the land the ownership of which is not transferred under Section 49-A(1), shall be deemed to have been surrendered to the landlord, and thereupon the provisions of sub-ss.(1) and (2) of Section 21 and Chapter VII of the Act shall apply in relation to such land as if the land was surrendered by the tenant under Section 20. The scheme of Section 49-A indicates that it has to be determined as to in respect of which land held by the tenant ownership is transferred on 1st of April 1963 and then the question whether there is any land of which ownership is not transferred and is deemed to have been surrendered to the landlord is to be determined. The question whether the landlord is entitled to retain the entire land so surrendered is also to be determined. The proceeding contemplated by Section 49-A with regard to the transfer of ownership and the consequent coming into being of the statutory surrender is a composite proceeding. No doubt, sub-section(5) provides that for the limited purpose of dealing with the land which will be statutorily surrendered, the provisions made in sub-sections (1) and (2) of S.21 will apply, but merely because the manner in which the land with regard to which there is a statutory surrender has to be dealt with is indicated by sub-section (5) of S. 49-A with reference to the provisions of Sections 20 and 21, that does not ipso facto make the surrender as one under Section 20, but it is only deemed to be as if one under Section 20. The nature of the proceedings under Section 49-A(5) in which the land which the tenant is entitled to keep as an owner and the land which he must be deemed to have surrendered is not altered merely because the proceedings have to be determined with reference to the provisions of sub-sections (1) and (2) of S. 21. Section 100 which deals with the powers and duties of the Tahsildar does not make any reference to the matter under Section 49-A of the Tenancy Act. Under Clause (b) of S. 98, it is the duty of the Agricultural Lands Tribunal to decide any dispute as to the particular area of land to be purchased under Sections 41, and 46 and 49-A. The statutory surrender is a consequence of certain land not being transferred to the tenant as a statutory purchaser and since this statutory surrender follows by way of a consequence, it is not possible to hold that separate proceedings should be initiated by the landlord for having an enquiry with regard to such a surrender to be made. The proper authority, therefore, to decide the question whether in fact there is any surrender as contemplated by Section 49-A(5) and how the land so surrendered is to be dealt with would be the Agricultural Lands Tribunal. There is thus no question in a proceeding under Section 49-A of a landlord being required to apply under Section 36 of the Tenancy Act and the application under Section 36 was wholly misconceived and made to an authority which had no jurisdiction to deal with the matter under Section 49-A. In this view of the matter, it is not necessary to decide the other contentions raised by the learned counsel for the petitioner. The finding given by the Tribunal that the proper authority to deal with the question of the statutory surrender was the Agricultural Lands Tribunal thus cannot be interfered with.
5. The petition must, therefore, fail and is rejected, but in the circumstances, there will be no order as to costs.
6. Petition dismissed.