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Mallasha Sayabanna Mangonda Vs. Khadir Ajam Aherwadi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 740 of 1966
Judge
Reported in(1969)71BOMLR523; 1969MhLJ753
AppellantMallasha Sayabanna Mangonda
RespondentKhadir Ajam Aherwadi
Excerpt:
.....though one of the purposes of the act of 1948 is to amend the law governing- the relations between landlords and tenants it has other purposes as well. the occupant's plea that the deputy collector had no jurisdiction to deal with the matter was rejected by the deputy collector as well as by the revenue tribunal. it is well settled that the observations in a case though apparently of wider import must be considered in the context in which they are made and can not have limitless application. in durgaben's case the learned chief justice said that the collector has jurisdiction to act in a case if it satisfied the conditions of either the clauses (a), (b) or (c) of section 84 of the act. 11. when construing section 84 of the act we must bear in mind the well settled rule that provisions..........act of 1'948. the revenue tribunal said that the tenancy act was meant to resolve disputes between landlord and tenant and such disputes as are raised with the help of the tenant or the landlord, hut, as respondent no. 1 was held to he a trespasser, the petitioner should approach civil court.5. the preamble to the act shows that though one of the purposes of the act of 1948 is to amend the law governing- the relations between landlords and tenants it has other purposes as well. they are to ensure the full and efficient use of the land for agriculture, to regulate and impose restrictions on the transfer of agricultural lands and to make other provisions appearing in the act. it is not right, therefore, to say that the purpose of the act is merely to resolve disputes between, landlords and.....
Judgment:

Patel, J.

1. This is an application under Article 227 of the Constitution of India challenging the order made by the Assistant Collector under Section 84(c) of the Bombay Tenancy Act, 1948 (hereinafter referred to as the Act of 1948) and confirmed by the Revenue Tribunal. The short facts leading to the present application are as follows: The land in suit belonged to one Dhondi Abaji who was cultivating- the land by himself right until his death. It appears that he had created a mortgage on the property and the mortgagee obtained a decree for recovery of the mortgage amount. Eventually, the property 'was put to auction and in execution proceedings the petitioner on November 4, 1950, purchased the: same. As respondent No. 1 claimed to be in possession of the property on his own account, the petitioner could not successfully obtain physical possession under Order XXI, Rule 95, 'Civil Procedure Code. As soon as the sale was confirmed and respondent No. 1 came to know that the property was sold in execution proceedings, he made an application to the Assistant Collector, Sholapur, under Section 84 (c) of the Act claiming that he was a tenant on the land and that the purchase by the petitioner was void. This application was rejected on the ground that respondent No. 1 was not a tenant and that he could not make the application under Section 84(c) of the Act. This judgment was confirmed by the Revenue Tribunal and by this Court in Special Civil Application No. 1547 of 1963 decided on November 13, 1964. In those proceedings respondent No. 1 had admitted that he did not know who the> heirs of original opponent No. 1 (original owner) were and that he had not paid rent to anybody. The evidence showed that the original owner Dhondi was cultivating the land himself until his death. Admissions made by respondent No. 1 showed that the land had not been leased by the heir of Dhondi. Consequently it upheld the view taken by the tenancy Courts and the Revenue Tribunal.

2. After that matter was finally decided, the petitioner made an application to the Assistant Collector under Section 84(c) of the Act for summary eviction of respondent No. 1. The Assistant Collector held that he had no jurisdiction to evict respondent No. 1 under Section 84 (c) of the Act as respondent No. 1 was not in wrongful possession by virtue of the provisions of the Act of 1948. The Revenue Tribunal confirmed this judgment.

3. When this matter came before Tarkunde J., ho referred it to a Division Bench as apparently there was some conflict in the judgments of this Court.

4. The Assistant Collector seemed to be of the view that in order to succeed, the petitioner must show that respondent No. I is in wrongful possession by virtue of the provisions of the Act of 1'948. The Revenue Tribunal said that the Tenancy Act was meant to resolve disputes between landlord and tenant and such disputes as are raised with the help of the tenant or the landlord, hut, as respondent No. 1 was held to he a trespasser, the petitioner should approach civil Court.

5. The preamble to the Act shows that though one of the purposes of the Act of 1948 is to amend the law governing- the relations between landlords and tenants it has other purposes as well. They are to ensure the full and efficient use of the land for agriculture, to regulate and impose restrictions on the transfer of agricultural lands and to make other provisions appearing in the Act. It is not right, therefore, to say that the purpose of the Act is merely to resolve disputes between, landlords and tenants and those claiming through either or both. Nor is it right to curtail the effect of a provision if expressed in clear and unambiguous language by reference to its intended purpose.

6. Section 84 of the Act of 1.948 reads as follows:

Any person unauthorisedly occupying or wrongfully in possession of any land- (a) the transfer or acquisition 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 persons, may be summarily evicted by the Collector.

7. There has been considerable case-law regarding the interpretation of this section. The first decision, is that of a Division Bench of this Court consisting of Gajendragadkar and Gokhale JJ. in Shri Shiddappa Bkimanna Ullagadi v. Shri Mallwppa Mennappa Badachi (1956) Special Civil Application No. 278 of 1956 decided by Gajendragadkar and Gokhale JJ., on April 10, 1950 (Unrep.). In this case an application was made under Section 84 of the Act by the owner of the land alleging that the opponent was a trespasser; that he had no right to remain in possession of the land and that, therefore, he should be evicted from the same. The opponents there claimed tenancy rights. The Deputy Collector held that the occupant was a trespasser and ordered summary eviction. The occupant's plea that the Deputy Collector had no jurisdiction to deal with the matter was rejected by the Deputy Collector as well as by the Revenue Tribunal. This Court affirmed that the Collector had jurisdiction to evict a trespasser under Section 84(c) of the Act as a trespasser was not entitled to the use and occupation of the land under the provisions of the Act and that the said provisions did not provide for a remedy. On behalf of the occupant a contention was raised that before such a proceeding could be adopted it was incumbent upon the petitioner to obtain a decision from the Mamlatdar under Section 70 of the Act that the occupant is not a tenant. This contention was rejected holding that it was only when an application is made under Section 29 of the. Act that the question of examination of the status of the occupant under Section 70 can possibly arise. Inasmuch as an application under Section 29 could not be made against a trespasser the question of determination of the status under Section 70 by the Mamlatdar could not arise. The Court held that as regards trespassers the only provision that could be invoked is that contained in Section 84 of the Act.

8. Similar question arose in Smt. Anjalibai Ramchandra Yevalekar v. Shankar Bala Patil (1939) Special Civil Application No. 3207 of 1958, decided by Mudholkar and Patel JJ. on February 10, 1959 (Unrep.) before a Division Bench. Following the earlier decision the Court held that the Collector was entitled to determine as to whether or not the occupant was in unauthorised possession of the land and not entitled to remain in possession of it and could summarily evict him. To the same effect are the- observations in the later decisions in Sarjerao Shripaiti Jarad v. Namdeo Mugutrao Jarad (1959) Special Civil Application No. 3105 of 1958, decided by Tambe and Datar, JJ., on July 15, 1963 (Unrep.) and The Rural Product Co. Ltd. v. Laxman Davlu Laxman (1963) Special Civil Application No. 1370 of 1962, decided by Patel and Kantawala JJ., on April 1, 19S9 (Unrep.).

9. It is argued that the authority of these decisions is materially affected by reason of the two other decisions also of this Court rendered by Division Benches, The first case is Durgaben Manibhai v. Moria Bavla (1955) 58 Bom. L. R. 451. The facts in that case were somewhat peculiar. The landlord had obtained an order from the Mamlatdar under Section 29(2) of the Act for possession against the tenant on the footing of surrender. Thereafter the tenant made an application under Section 84 of the Act for summary eviction of the landlord who had obtained possession alleging that even though the order for possession was made in favour of the landlord he still continued to be in possession and it was recently that the landlord had dispossessed him illegally. The learned Chief Justice speaking for the Court observed (p. 452) :.Presumably there is no obligation upon the Collector before he makes the order to give a judicial hearing to the party which might be affected by such an order. Therefore, we must be careful to see that such wide powers are confined strictly to the cases mentioned in Section 84. The power summarily to evict is not against any person unauthorised occupying or wrongfully in possession of any land, but it is only against such a person provided the case against such a person falls under either (a), (b) or (c) of Section 84 which provides :...

He then said:

Then we have what appears to us the qualifying provision, 'and the said provisions do not provide for the eviction of such persons'.

Relying on this part of the section the Court held that as the tenant had a make an application under Section 29(2) of the Act on the ground that had dispossessed him otherwise than under the provisions of the cation under Section 84(c) of the Act would not lie. This case was le Bench in The Rural Product Co. Ltd. v. Lawman to which reference has already been made and the Court distinguished that case. It is well settled that the observations in a case though apparently of wider import must be considered in the context in which they are made and can not have limitless application. In Durgaben's case the learned Chief Justice said that the Collector has jurisdiction to act in a case if it satisfied the conditions of either the Clauses (a), (b) or (c) of Section 84 of the Act.

10. The second case is Suleman Hasham v. Kashiram Bhau : (1958)60BOMLR1119 . In that case the Court held that the Collector in a summary proceeding under Section 84 of the Act cannot decide questions of title in relation to the land in dispute. We agree that this case rightly puts a limit on the powers of the Collector under Section 84 of the Act.

11. When construing Section 84 of the Act we must bear in mind the well settled rule that provisions creating new jurisdiction and ousting that of Civil Court must be strictly construed. This would be more so in a case such as this where the inquiry is summary and it is subject only to the revisional jurisdiction of the Revenue Tribunal. Even so, the rule of strict construction does not mean that by artificial construction the jurisdiction should be cut down and the statutory provision rendered useless.

12. Section 84 by its opening words relates to a person unauthorisedly occupying the land or wrongfully in possession thereof as qualified by any of the three clauses. 'Clauses (a) and (b) are clear and do not need any comment. Clause (c) poses the question in relation to such person whether he is not entitled to the use and occupation of the land under any provisions of the Act and whether there is any provision in the Act for his eviction. If these questions are answered in the affirmative, then the Collector would have jurisdiction to evict such an occupant.

13. It is a well-settled rule of construction that when power is vested in an authority to do certain things it has power to do all such things as are necessary for the execution of the power vested in it. The Collector, therefore, would have, as held in. Smt. Anjalibai Ramchandra Yevaleka v. Shankar Bala, Patil, the power and jurisdiction to decide whether the occupant is a trespasser or not. 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 he 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. Neither the decision in Durgaben's case nor that in Suleman's case is inconsistent with the decision in the other two cases. What is decided in both sets of eases can be reconciled as stated by us above by adopting the construction suggested above.

14. It is argued that the words 'to the occupation and use of which he is not entitled under the said provisions' contained in Clause (c) of Section 84 of the Act must mean that because of the provisions of the Act he is not entitled to use or occupy the land in dispute i.e. whose possession of the land is rendered unlawful by virtue of some provisions of the Act. It seems, with all respect, that the words must be given their natural meaning and we would not be justified in trying to paraphrase the said expression. If the Legislature intended to provide that the powers under Section 84(c) of the Act would be exercised only if the possession or occupation was against any prohibition as such in the Act itself, it would have clearly said so. The words are 'to the use and occupation of which he is not entitled under the said provisions' and they can only mean that the provisions do not entitle him to use and occupy the said land. The words 'the said provisions' do not mean merely the provisions relating to transfers. In Clause (a) of Section 84 the words used are 'under the provisions of this Act', while in Clause (c) the words are 'under the said provisions'. They can only mean the provisions of the Act, and. if it is shown that the occupant is not entitled under any of the provisions of the Act to occupy or use the land and if there is no provision for eviction of such persons, Section 84 would apply.

15. If the clause is construed to mean 'to the use or occupation of which he is not entitled to because of the provisions of the Act' the clause will be almost redundant. Section 29 of the Act provides the procedure for either the landlord or the tenant to obtain possession when the other is not entitled to remain in possession as such. Under Section 15 the landlord can obtain possession on surrender of the tenancy. Section 29A applies to the sites used by agriculturists for allied pursuits. Section 32(1a) enables an evicted tenant not in possession on the appointed date but who is entitled to purchase the land, to apply for possession. Section 32P provides for summary eviction amongst other things of persons whose purchases have failed or who have failed to exercise the option vested in them under the Tenancy Act. Section 32R provides for eviction of a purchaser who fails to cultivate the land personally. Section 33B gives a certificated landlord the right to apply for possession of land from his tenant for personal cultivation. Section 39 enables a tenant to apply for possession if the landlord fails to cultivate the land after he obtains possession under Section 33B or Section 34. Section 57 enables the manager to remove mortgagee in possession of land taken under management by the Government. Section 84(a) and (b) provide for eviction of persons whose possession has become wrongful by reason of ;m invalid transaction or the management having been assumed by the Government under Section 65 of the Act. It Is clear, therefore, that with respect to persons whose possession or occupation becomes unlawful because of the provisions of the Act, special provisions have been made for their eviction. If, therefore, the limited construction is placed on the words, it would render the provisions nugatory and meaningless, which the Court ought not to do if it can be avoided. We would, by accepting this construction, frustrate the object of the Act which is also to see that most efficient use of the land is made. It is obvious that land cannot be utilised in the most efficient manner if long drawn out litigations are to continue from Court to Court in civil Courts, in respect of the land.

16. It is undoubtedly true that the Legislature might as well have stopped by providing that the Collector would have authority to evict summarily any person in unlawful occupation of any land. That it has not done. Instead it has adopted a different way of expressing almost the same intention. This would mean that the clause should have somewhat limited meaning as suggested by us.

17. Applying the principles above, it is clear that the petitioner is entitled to an order under Section 84(c) of the Act. Respondent No. 1 claimed to be a tenant when he applied to have the transfer held invalid. He failed in all Courts including the High Court in Special Civil Application No. 1547 of 1963 which he filed. He has no defence. It is clear, therefore, that he is not entitled to the use or occupation of the land under any provision of the Act. There is also no provision in the Act for his eviction. The Collector, therefore, would have jurisdiction to act under Section 84(c) of the Act.

18. The Assistant Collector -has rejected the application of the petitioner only on that ground and not on the ground that even if he had jurisdiction he would have rejected the application because he was satisfied that this was not a case where summary powers should be exercised. In this view of the matter, the Collector's order cannot be sustained.

19. We accordingly set aside the orders made by the Assistant Collector and the Tribunal and direct summary eviction of respondent No. 1 from the suit land. The petitioner will get Ms costs from respondent No. 1.


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