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Vishnu Dada Lokhande Vs. Umabai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1474 of 1952
Judge
Reported in(1955)57BOMLR816
AppellantVishnu Dada Lokhande
RespondentUmabai
DispositionAppeal dismissed
Excerpt:
bombay tenancy act (bom. xxix of 1939), section 24, 2(13)-bombay land revenue code (bom. v of 1879), sections 10, 8, 9-bombay general clauses act (bom, i of 1904), section 3(1)-bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 2(2a), 74(2)-appeal against order passed by mamlatdar under section 24(2) of b.t. act heard by district deputy collector-whether district deputy collector competent to hear appeal-order under section 10 of b.l.r. code putting assistant or deputy collector in charge of revenue administration whether imposes limitation on jurisdiction of such officer-effect of parenthetical clause in section 10.;the district deputy collector is competent to hear an appeal against an order passed by the mamlatdar under section 24(2) of the bombay tenancy act,.....shah j.1. the lands in suit originally belonged to one vishwanath bajirao. vishwanath was murdered in february 1948 and his property devolved upon his widow umabai. vishwanath had served a notice upon the defendant who was his tenant in respect of the suit lands terminating the tenancy as from march 31, 1948, on the ground that the lands were required for personal cultivation. the defendant declined to deliver possession after expiry of the period of notice. thereupon umabai filed application no. 2 of 1948 in the court of the mamlatdar, karad, under section 24 of the bombay tenancy act, 1939, for an order for possession. the application was granted by the mamlatdar on june 2, 1948, and umabai enforced the order of the mamlatdar and obtained possession of the suit lands on june 23, 1948......
Judgment:

Shah J.

1. The lands in suit originally belonged to one Vishwanath Bajirao. Vishwanath was murdered in February 1948 and his property devolved upon his widow Umabai. Vishwanath had served a notice upon the defendant who was his tenant in respect of the suit lands terminating the tenancy as from March 31, 1948, on the ground that the lands were required for personal cultivation. The defendant declined to deliver possession after expiry of the period of notice. Thereupon Umabai filed application No. 2 of 1948 in the Court of the Mamlatdar, Karad, under Section 24 of the Bombay Tenancy Act, 1939, for an order for possession. The application was granted by the Mamlatdar on June 2, 1948, and Umabai enforced the order of the Mamlatdar and obtained possession of the suit lands on June 23, 1948. The defendant preferred appeal No. 49 of 1948 against the decision of the Mamlatdar to the District Deputy Collector, Karad Division, North Satara District, The appeal was heard by the Deputy Collector and it was ultimately decided in favour of the defendant. The Deputy Collector reversed the order of the Mamlatdar and directed Umabai to restore possession of the lands in suit to the defendant. Against that order, Umabai filed an application in revision to the Provincial Government and applied for stay of execution of the order passed by the Deputy Collector till the disposal of the revision application. Umabai also filed suit No. 264 of 1948 in the Court of the Joint Civil Judge, J.D., Karad, against the defendant for a declaration that she was entitled to retain possession of the suit lands and for an injunction restraining the defendant from taking possession of the suit lands in enforcement of the order passed in appeal No, 49 of 1948. In the alternative Umabai claimed a declaration that the tenancy of the defendant was determined, and that the defendant was not entitled to enforce the order of the Deputy Collector. The suit was resisted by the defendant. The defendant contended inter alia that the civil Court had no jurisdiction to entertain the suit. He also contended that Umabai did not require the lands for personal cultivation and that Vishwanath, Umabai's husband, had never cultivated the lands personally at any time. The learned trial Judge, on a consideration of the evidence, held that the tenancy of the defendant was duly determined by notice to quit, but the plaintiff was not entitled to the declaration that the defendant's tenancy had terminated. He also held that the plaintiff did not require the suit lands bona fide for personal cultivation and that Umabai was not personally cultivating the lands after getting the same in her possession. In the view of the learned Judge, the suit filed by Umabai for the relief claimed by her was maintainable and that the civil Court had jurisdiction to entertain the suit, but on the view that the plaintiff did not require the lands bona fide for personal cultivation, the learned Judge dismissed the suit. An appeal was preferred to the District Court at Satara against the decree passed by the trial Court. In appeal, the learned District Judge held that the tenancy of the defendant had been duly determined by proper notice to quit and that the plaintiff required the lands for personal cultivation. He also held that the suit filed by the plaintiff was maintainable and that the civil Court had jurisdiction to entertain the suit and to grant the declaration and injunction sought. The learned Judge accordingly allowed the appeal filed by the plaintiff and reversed the decree passed by the trial Court. The learned Judge declared that the plaintiff was entitled to retain possession of the land. He also declared that the tenancy of the defendant was validly determined. In arriving at that conclusion, the learned District Judge expressed the view that the District Deputy Collector, who heard the appeal against the decision of the Mamlatdar, had no jurisdiction to entertain and decide the appeal. In the opinion of the learned Judge, an appeal against the order of the Mamltadar could only be entertained by the Collector of the District and it could not be heard by a District Deputy Collector. He observed:

Under the provisions of the Tenancy Act, it is the Collector who is referred to as the Authority to whom an appeal from the decision of the Mamlatdar is to be filed. No notification delegating the powers of the Collector in that respect to the District Deputy Collector is pointed out. Hence in the absence of such notification, the District Deputy Collector cannot prima facie be regarded to be entitled to entertain the appeal; and I find that there is a good deal of force in the argument that the order passed by the District Deputy Collector is ultra vires. Under the circumstances, the possession obtained by the plaintiff under the orders of the Maralatdar cannot be regarded to be in any way wrongful.

The defendant has filed this second appeal against the decree passed by the learned District Judge. Mr. G.A. Desai, who appears on behalf of the defendant, has contended that the civil Court had no jurisdiction to entertain and decide the suit for a declaration that an order passed by the District Deputy Collector in an appeal properly filed under the Bombay Tenancy Act, 1939, awarding possession to the defendant was not liable to be enforced. Mr. Desai also contended that the appeal against the order of the Mamlatdar lay to the Deputy Collector and the Deputy Collector was competent to decide the appeal and the District Court was in error in holding that the order passed by the Deputy Collector was without jurisdiction.

2. Now, the proceedings were taken by Umabai in the Court of the Mamlatdar when the Bombay Tenancy Act, 1939, was in force, and notwithstanding the repeal of that Act by the Bombay Tenancy and Agricultural Lands Act, 1948, the proceedings commenced under the Bombay Tenancy Act, 1939, had to be heard and disposed of as if that Act had not been repealed. Under Section 24 of the Bombay Tenaney Act, 1939, a landlord was entitled to make an application to the Mamlatdar for obtaining possession of any land held by a tenant. On receipt of an application by a landlord for possession of any land held by a tenant, the Mamlatdar was required to hold an enquiry in the prescribed manner and to decide the case according to the rights of the parties. Against the decision of the Mamlatdar, Sub-section (3) of a, 24 provided an appeal to the Collector, and Sub-section (4) provided that, subject to the provisions of Section 28, every order passed by the Mamlatdar under Sub-section (2), unless modified or revised by the Collector on appeal under Sub-section (3), and every order passed by the Collector under Sub-section (3), shall be final. The effect of that provision was to make the decision of the Mamlatdar, if not modified or reversed on appeal, and the decision of the Collector in appeal, final. In the present case, an application was filed by Umabai for possession of the land from her tenant and that application was governed by Section 24 of the Bombay Tenancy Act, 1939. The Mamlatdar decided the application in favour of Umabii. If the order had not been validly appealed from the order by Sub-section (4) of Section 24 would have become final. But an appeal was filed by the defendant against that order and in appeal the Deputy Collector reversed the order of the Mamlatdar and directed that Umabai do restore possession of the property which she had obtained under the order of the Mamlatdar. If the order of the Deputy Collector is passed in exercise of jurisdiction vested in him, that order must also be regarded as final and it is not open to the civil Court to decide the question whether that order was irregularly passed. The validity of that order can only be challenged on the sole ground of competence of the Mamlatdar or the Collector. Now, the learned District Judge, as I have stated earlier, held that an appeal from a decision under Section 24, Sub-section (2), of the Bombay Tenancy Act, 1939, can be entertained only by the Collector and not by the Deputy Collector. If that decision is correct, evidently the Deputy Collector had no jurisdiction to entertain and hear an appeal against the decision of the Mamlatdar and to reverse his decision.

3. The sole question, therefore, which falls to be determined in this second appeal is whether the District Deputy Collector was competent to hear an appeal against an order passed by the Mamlatdar under Section 24, Sub-section (2), of the Bombay Tenancy Act, 1939. The expression 'Collector' has not been defined in the Bombay Tenancy Act, 1939. By Section 2, Sub-section (13), it is provided that the words and expressions used in the Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879. Turning to the Bombay Land Revenue Code, there is no definition of the expression 'Collector' even in the Code. But the Bombay General Clauses Act I of 1904 provides in Section 3, Clause (11), that in all Bombay Acts made after the commencement of the Bombay General Clauses Act I of 1904, unless there is anything repugnant in the subject or context, the 'Collector' shall mean, in the City of Bombay, the Collector of Bombay, and elsewhere the chief officer in charge of the revenue administration of a district. Reading the provisions of the Bombay General Clauses Act I of 1904 and the Bombay Tenancy Act, 1939, together, it is evident that the expression Collector' should primarily have the meaning which that expression has in the Bombay General Clauses Act unless there is something in the context in which the expression is used in the Bombay Tenancy Act repugnant to that meaning. It cannot be suggested that there is anything in Section 24 which suggests a repugnancy in the subject or context which requires the Court to hold that the expression 'Collector' was not to have the meaning which the definition in the General Clauses Act gives to that expression. But the Bombay Land Revenue Code deals in Chapter II with the Constitution and Powers of Revenue Officers. By Section 8, the State Government is authorised to appoint in each District an officer who shall be the Collector and who may exercise, throughout his district, all the powers, and discharge all the duties conferred and imposed on a Collector or an Assistant or Deputy Collector by the Act, or by any other law for the time being in force, and in all matters not specially provided for by law shall act according to the instructions of the State Government. Section 9 of the Code enables the State Government to appoint in each district so many Assistant Collectors and Deputy Collectors as it may deem expedient and by the second paragraph of that section, all Assistant and Deputy Collectors in a district are made-subordinate to the Collector for the district. The combined effect of Sections 8 and 9 of the Bombay Land Revenue Code is that the State Government is authorised to-appoint a Collector in every district and also to appoint as many Assistant or Deputy Collectors as it may deem expedient and that the Collector is entitled to exercise all the powers and to discharge all the?duties which are imposed upon him by the Code and he is also entitled to exercise all the powers of the Assistant and the Deputy Collector conferred by the Code. It is further provided that the Collector is entitled to exercise all the powers and discharge all the duties which are imposed upon him by any other law for the time being in force upon an Assistant or a Deputy Collector. Section 10 of the Bombay Land Revenue Code provides that:

Subject to the general orders of the State Government, a Collector may place any of his assistants or deputies in charge of the revenue administration of one or more of the talukas in his district, or may himself retain charge thereof.

Any Assistant or Deputy Collector thus placed in charge shall, subject to the provisions of Chapter XIII, perform all the duties and exercise all the powers conferred upon a Collector by this Act or any other law at the time being in force, so far as regards the taluka or talukas in his charge.

There are two other paragraphs in Section 10 which are not material in the present appeal and need not be set out. Whereas Section 8 enables the Collector to perform the functions and discharge the duties of an Assistant or a Deputy Collector under the Bombay Land Revenue Code or any other law for the time being in force, Section 10 authorises an Assistant or a Deputy Collector, who has been put in charge of there venue administration of one or more talukas of the district, to perform all the duties and to exercise all the powers conferred upon a Collector by the Bombay Land Revenue Code or by any other law for the time being in force so far as regards the taluka or talukas in his charge. The effect of Section 10 is that, once an Assistant or a Deputy Collector is by an order of the Collector put in charge of revenue administration of one or more talukas in his district, by the operation of the second paragraph of Section 10, he is subject to territorial limitations statutorily invested with all the powers which are conferred upon the Collector by the Code or by any other law for the time being in force and is entitled to exercise the powers of a Collector under the Code or by any other law for the time being in force. The Bombay Tenancy Act, 1939, is undoubtedly 'any other law' in force within the meaning of Section 10. It is undisputed in this case that the Deputy Collector, who decided the appeal filed by the defendant, was placed in charge of the Karad taluka and having been so placed in charge, he had, under the second paragraph of Section 10, jurisdiction to exercise the powers of the Collector to hear appeals under Section 24 of the Bombay Tenancy Act so far as regards the taluka in his charge.

4. It appears that the provisions of Section 10 of the Bombay Land Revenue Code were not brought to the notice of the learned District Judge, and he held that the Collector of the district alone can exercise appellate powers under Section 24 of the Bombay Tenancy Act, 1939, and not a Deputy Collector or an Assistant Collector. Mr. Jahagirdar, who appears on behalf of the plaintiff, has contended that even though the expression 'by this Act or any other law at the time being in force' in the second paragraph of Section 10 of the Bombay Land Revenue Code is very wide, the duties and the powers which an Assistant Collector or a Deputy Collector can exercise or perform relying upon the statutory delegation must in view of the first paragraph of Section 10 relate to the revenue administration of the taluka. He contended that when the Collector can by order put his Asistant or Deputy in charge of the revenue administration of a taluka or talukas, the exercise of the powers and the performance of the duties by the Assistant Collector or the Deputy Collector must be in relation to the revenue administration of the taluka or talukas in his charge and not in performance of any other duties or exercise of other powers. According to Mr. Jahagirdar, if the powers which are required to be exercised or the duties which are required to be discharged by the Collector do not relate to the revenue administration, the jurisdiction cannot be exercised by the Assistant or the Deputy Collector relying upon the provisions of Section 10, para. 2. In support of that contention, Mr. Jahagirdar has pointed out to us certain provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and the amendment made by the Legislature in that Act by Bombay Act XII of 1951. Mr. Jahagirdar has also relied upon a decision of a division bench of this Court in Jsonuv Arjun : AIR1915Bom17 decided under the Mamlatdars' Courts Act of 1906.

5. In our view, there is nothing in Section 10 of the Bombay Land Revenue Code which suggests that there is a limitation as to the nature of the law for the time being in force or as to the character of the jurisdiction to be exercised by the Assistant Collector or the Deputy Collector when he has been put in charge of a taluka.' The words of the second paragraph of Section 10 are explicit. They authorise the Assistant-or the Deputy Collector, once he has been put in charge of a taluka, to exercise the powers of a Collector under the Bombay Land Revenue Code or under any other law for the time being in force. It is true that the exercise of powers by an Assistant Collector or a Deputy Collector can only become effective if he is put in charge of the revenue administration of a taluka by order of the Collector. The mere appointment by the State Government under Section 9 of an Assistant Collector or a Deputy Collector does not confer upon an Assistant or a Deputy Collector the powers of a Collector. It is only when an Assistant or a Deputy Collector is put in charge of the revenue administration of a taluka that he is authorised to exercise the powers of the Collector and to perform the duties of the Collector in regard to the taluka in his charge. An order putting an Assistant or a Deputy Collector in charge of the revenue administration of a taluka does not, in our judgment, impose any limitation as to the nature or the character of jurisdiction to be exercised by that officer. It is only a condition on the happening of which the jurisdiction of the Assistant or the Deputy Collector becomes exercisable. It is true that performance of the duties and exercise of the powers by the Assistant or the Deputy Collector is made subject to the provisions of Chapter XIII of the Bombay Land Revenue Code. That chapter deals with 'appeals and revision' and the effect of the parenthetical clause that the performance of the duties and the exercise of the powers is subject to the provisions of Chapter XIII is only to attract the provisions relating to appeals and revision against orders passed and acts done by revenue officers. An order passed by a Deputy Collector or by an Assistant Collector under any law for the time being in force is in the absence of any express provision of the Code or of any other law appealable or revisable in the manner provided by Chapter XIII. It is evident from Section 203 itself that by an express provision made in the statute which confers powers or imposes duties, the application of Chapter XIII may be excluded. In Section 24 of the Bombay Tenancy Act, 1939, by Sub-section (4) it is provided that the orders passed by the Collector in appeal shall be final and if the Deputy Collector passes an order in appeal under Section 24, Sub-section (3), that order may be regarded as final.

6. The Legislature having made the order passed under Section 24, Sub-section (3), of the Bombay Tenancy Act, 1939, final, the incident of appeal which would have otherwise attached thereto must be regarded as excluded by express provision to the contrary. The effect of Section 10, para. 2 of the Bombay Land Revenue Code, is that the word' Collector' as used in Section 24 of the Bombay Tenancy Act must when the Assistant or Deputy exercises appellate powers be regarded as substituted by the expression Deputy Collector or the Assistant Collector. It is true that the Legislature, when it enacted the Bombay Tenancy Act, 1939, did not expressly enact that the Collector' includes an Assistant or a Deputy Collector performing the duties and exercising the powers of a Collector under the Land Revenue Code of 1879. But, in our judgment, that was necessarily implicit as a result of Section 10 of the Bombay Land Revenue Code. It is also true that by Bombay Act XII of 1951, which amended the Bombay Tenancy and Agricultural Lands Act, 1948, such a provision has been made and the Legislature has now expressly provided by Section 2(2A) in the latter Act that the expression 'Collector' shall include an Assistant or Deputy Collector performing the duties and exercising the powers of the Collector under the Bombay Land Revenue Code. Relying upon that provision which was made by the amendment Act of 1951, Mr. Jahagirdar has contended that it was the view of the Legislature that, prior to the enactment of Sub-section (2A) of Section 2 in the Bombay Tenancy and Agricultural Lands Act, 1948, by Bombay Act XII of 1951, the expression 'Collector' used in the Bombay Tenaney and Agricultural Lands Act, 1948, and in the Bombay Tenancy Act, 1939, did not include an Assistant or a Deputy Collector. Mr. Jahagirdar has further contended that, because an Assistant or a Deputy Collector was initially not intended to exercise the powers and perform the duties of the Collector under the Bombay Tenanoy Act, 1939, and the Bombay Tenancy and Agricultural Lands Act, 1948, that the Legislature thought it necessary to make the provision which it did by the amending Act XII of 1951 and provided for hearing of appeals by Assistant or Deputy Collectors under the Bombay Tenancy and Agricultural Lands Act, 1948. In our view, an inference cannot necessarily be drawn from the amending Act XII of 1951 that the power to hear an appeal from the decision of a Mamlatdar could not have been exercised by the Assistant or the Deputy Collector before Act XII of 1951 amended the Bombay Tenancy and Agricultural Lands Act, 1948. The Legislature often enacts legislation with a view to remove doubts which might possibly be raised. The fact that a piece of legislation has been passed as a matter of abundant caution would not justify the Courts in holding that the Legislature has expressly enacted what was not implicit in the previous legislation.

7. Reliance was also placed by Mr. Jahagirdar upon Sub-section (2) of Section 74 of the Bombay Tenancy and Agricultural Lands Act, 1948. By Sub-section (1) of Section 74, it is provided that appeals against orders of the Mamlatdar and Tribunal may be filed in certain cases specified in Sub-section (1). Sub-section (2) thereafter provides:

Save as otherwise provided in this Act, the provisions of Chapter XIII of the Bombay Land Revenue Code, 1879, shall apply to appeals to the Collector under this Act, as if the Collector were the immediate superior of the Mamlatdar or the Tribunal....

Relying upon this provision, Mr. Jahagirdar contends that the Legislature intended that an appeal shall lie against the order of the Mamlatdar only to the Collector and to no other officer. He submits that, if that was not the intention of the Legislature, it was unnecessary to have enacted Sub-section (2) of Section 74. In our view, that contention also does not appear to have any force. The immediate superior of a Mamlatdar is not the Collector, but the Assistant or the Deputy Collector in charge of the taluka where the Mamlatdar is functioning. Section 203 of the Bombay Land Revenue Code which provides for appeals against the decisions of revenue officers provides that, in the absence of any express provision of this Act or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under the Code or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not. Now, by the provision of Section 203, an appeal did not lie from the order of the Mamlatdar to the Collector; it lay to the Deputy Collector or the Assistant Collector in charge of the taluka in which the Mamlatdar was functioning. By Section 74 Sub-section (1), an appeal was provided to the Collector and it was provided by Sub-section (2) that the Collector, for the purpose of appeal, shall be deemed to be the immediate superior of the Mamlatdar. There is nothing in Sub-section (1) or Sub-section (2) which expressly or by implication suggests that the Collector alone was entitled to hear appeals under Sub-section (1) of Section 74. What is provided by Section 74 is only that an appeal shall lie from the order of the Mamlatdar or the Tribunal to the Collector and if the Collector hears the appeal, he shall for the purpose of Section 203 be regarded as the immediate superior of the Mamlatdar. But when by statute the powers of the Collector may be exercised by another officer subordinate to the Collector, and such officer hears the appeal, the officer would, for the purpose of Sub-section (2), be regarded as the immediate superior of the Mamlatdar within the meaning of Chapter XIII of the Bombay Land Revenue Code, and his decision would be the decision of the Collector within the meaning of Section 74, Sub-section (1).

8. Mr. Jahagirdar then referred us to in 8onu v. Arjun. That was a case under the Mamlatdars' Courts Act and the question which arose for decision was whether the expression 'Collector' as used in Section 23 of the Mamlatdars' Courts Act, 1906, included a Deputy Collector. A division bench consisting of Scott C.J. and Batchelor J. held that the Deputy Collector had no authority to pass any order under the Act purporting to exercise revisional jurisdiction under Section 23. In coming to that conclusion, the learned Judges held that a Collector, as denned in the General Clauses Act, was the chief officer in charge of the revenues administration of the district, and when, by the Mamlatdars' Courts Act of 1906, powers were conferred upon the Collector, an officer who had been put in charge of a part of the district could not exercise those powers. Reliance was sought to be placed in that case by the defendant upon the provisions of Section 10 of the Bombay Land Revenue Code, but it was opined that the expression 'any law for the time being in force' used in para. 2 of Section 10 must mean any law ejusdem generis with the Bombay Land Revenue Code and would not embrace any special law relating to Mamlatdars' Courts such as is found in the Act of 1906. Their Lordships also observed that if a Deputy Collector could hear a revision application under Section 23 of the Mamlatdars' Courts Act, there would arise an uncontemplated result that against the decision of the Deputy Collector, a further appeal would lie to the Collector and from the order of the Collector to the Commissioner under the Code, there being no express provision to the contrary under the Mamlatdars' Courts Act, 1906, With respect, it must be stated that in making that observation the learned Judges appear to have been in some error. The Bombay Land Revenue Code does not contemplate an appeal against the decision of a revenue officer exercising revisional jurisdiction and the assumption that the order of a Deputy Collector passed under Section 23 of the Mamlatdars' Courts Act could be appealed against to the Collector or the Commissioner does not seem to be warranted. Therefore, what the learned Judges characterized as the absurdity of the conclusion,' and which was relied upon as an argument for supporting the view that a revision application did not lie to the Deputy Collector under Section 23, cannot be appreciated.

9. In this connection attention may also be directed to an earlier decision of this Court in Keshav v. Jairam : (1911)13BOMLR1031 which dealt with the question whether an Assistant Collector can hear an application in revision under Section 23 of the Mamlatdars' Courts Act. That was also a decision of a division bench in which it was held that an Assistant Collector, who is put in revenue charge of any portion of a district, is empowered by Section 10 of the Bombay Land Revenue Code of 1879, to exercise all the powers conferred upon the Collector of the district by Section 23 of the Bombay Mamlatdars' Courts Act, 1906. In Keshav's case their Lordships referred to Section 10 of the Bombay Land Revenue Code and observed that it would be stretching the interpretation of the expression 'or any other law at the time being in force' too far to hold that laws or Acts ejusdem generis with the Bombay Land Revenue Code alone were intended to be covered thereby and not other Acts such as the Mamlatdars' Courts Act of 1906. There was, when Sonu v. Arjun was decided by the division bench consisting of Scott C.J. and Batchelor J., an earlier decision of a division bench of this Court precisely on the same point which arose in the latter case. It is true that, in the view of the bench in Sonu's case, certain arguments were not presented to the bench which decided Keshav v. Jairam. There being two conflicting decisions on the same point, it would be open to us to follow either of the two decisions which, in our view, is more consistent with the true interpretation of the Bombay Mamlatdars' Courts Act and the Bombay Land Revenue Code if a question which was decided by the two benches arose for decision at this date. But it must be mentioned that the question on which there was difference of opinion between the two benches has become academic because the Legislature has, by Act XXIV of 1942, amended the Mamlatdars' Courts Act and has added Sub-section (2A) to Section 23 which enables the Collector to delegate the powers conferred upon him by Section 23 to any Assistant or Deputy Collector subordinate to him. But in Keshav v. Jairam one division bench took the view that there was no justification for holding that the expression 'any other law at the time being in force' in Section 10 must be law ejusdem generis with the Bombay Land Revenue Code and another bench in Sonu v. Arjun held that the scheme of the Code indicated that the law at the time being in force must be law ejusdem generis with the law in the Bombay Land Revenue Code, In the view that we have expressed, we would be willing to accept the view expressed in Keshav v. Jairam. But, for the decision of the present case, it is unnecessary for us to decide the point. The Bombay Tenancy Act deals with matters some of which are also dealt with in the Bombay Land Revenue Code and even if for the application of Section 10, para. 2, of the Code, the test of a statute being ejusdem generis is to be applied, it cannot be stated that the Bombay Tenancy Act, 1939, is not ejusdem generis with the Bombay Land Revenue Code.

10. It must, therefore, be held that the Deputy Collector was competent to hear the appeal against the order of the Mamlatdar. Once it is held that the Deputy Collector was competent to hear and decide the appeal, the validity of the order passed by that officer cannot be challenged in a separate suit. On that view of the case, the appeal filed by the defendant will be allowed and the plaintiff's suit dismissed with costs throughout.

11. We invited Mr. V.S. Desai to assist us in this case and we are indebted to him for the assistance rendered in deciding this case.

12. The cross-objections filed by the plaintiff fail and they are dismissed with costs.


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