1. This is a petition under Article 227 of the Constitution of India and it arises out of an application made by opponent No. 1 to obtain possession of a field bearing Survey No. 57 for non-payment of rent.
2. Opponent No. 1 is the owner of the field in question which was let out to the present applicant. In respect of the years 1950-51, 1951-52 and 1952-53 the applicant made defaults whereupon opponent No. 1 made an application for possession under Section 29 read with Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948. The learned Assistant Consolidation Officer allowed the application and made an order evicting the applicant from the land in suit. There was an appeal to the Prant Officer and the learned Prant Officer allowed the tenant's appeal, reversed the order of the officer and directed that the possession of the suit land should be handed over to the tenant. From the appellate order an application in revision was preferred before the Bombay Revenue Tribunal and a Bench of that Tribunal, sitting at Belgaum, reversed the order of the District Deputy Collector as well as of the Additional Assistant Consolidation Officer and directed that the possession of the land, if it was with the tenant, should be restored to the landlord. From that order the present petition has been preferred, and the question for decision is whether the order of the Bombay Revenue Tribunal is correct.
3. Mr. R.G. Samant, appearing for the tenant, contends that the Bombay Revenue Tribunal was wrong in law in taking the view that no appeal lay from the order made by the Consolidation Officer on August 23, 1955. In order to understand the contention, it is necessary to refer to two sections of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Before, however, referring to these two sections, it may be observed that the present dispute is between a landlord and a tenant, and the landlord's case is that he is entitled to obtain from the tenant possession of the suit land because the tenant has committed three defaults in the payment of the amount of rent It is obvious that the Act, which is applicable, is the Tenancy Act of 1948; but Section 26 of the Bombay Prevention of Fragmentation and Consolidation ofHoldings Act, LXII of 1947, provides, by Sub-section (1), that during the continuance of the consolidation proceedings the Consolidation Officer shall exercise and discharge the functions of a revenue officer under Chap. IX of the Bombay Land Revenue Code, 1879, the Mamlatdars' Courts Act, 1906, and the Bombay Tenancy Act, 1939; and no revenue officer other than the Consolidation Officer shall take any proceedings under any of the said Acts in respect of any holding or land for the consolidation of which a notification has been issued under Section 15. Therefore, although ordinarily the Mamlatdar would have power to deal with a proceeding under the Tenancy Act of 1948, the Mamlatdar would have no power to deal with a proceeding under the Tenancy Act when a notification has been issued under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. In this case there is no dispute that a notification has been issued; 'and it is obvious that when the notification has been, issued, it is only the officer mentioned in Section 26(1) who has power to deal with theproceedings under the Tenancy Act of 1948. The latter part of Section 26(1) makes it perfectly clear that no revenue officer other than the Consolidation Officer has to take proceedings under the Tenancy Act of 1948. Now, in this case the authority, who dealt with opponentNo. 1's application, was an officer called the Additional Assistant Consolidation Officer, Ratnagiri, at Khed. This was in consonance with the provisions of Section 26(1), In order to decide the question whether an appeal lay from the order made by the Officer on August 23, 1955, one has to consider the provisions contained in Section 36 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, which provides:
Except as provided in this Act, no appeal or revision application shall lie from any order passed under Chapter II, III or IV of this Act.
It is to be noted that emphasis has to be placed upon the words 'of this Act' occurring in Section 36. Mr. Limaye, who appears for the landlord, contends that where Section 36 applies, there is no appeal provided and, therefore, the Bombay Revenue Tribunal was right in taking the view that no appeal could lie from an order made by the Consolidation Officer. In advancing this argument, Mr. Limaye, with respect, has obviously fallen into an error. In the first place, an appeal or a revisional application is not permitted under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, except as provided in the Act, which means, for brevity's sake, the Fragmentation Act, 1947. It will be apparent from Section 35 that the State Government has been given the power to revise an order made by the Consolidation Officer in order to satisfy itself as to the legality or propriety of an order. Obviously, such an order must be one under the Fragmentation Act, 1947; and in this case the order, which has been passed, is not one under the Fragmentation. Act, 1947, but it is one under the Tenancy Act of 1948. But Mr. Limaye contends, relying upon Section 26(2), that the question of possession is one for the officer to decide, and, therefore, no appeal lies. The error committed by Mr. Limaye is that there are two stages under Section 26; the first is that so long as the consolidation proceedings are pending, it is the Officer under the Fragmentation Act who has to deal with a proceeding under the Tenancy Act, 1948. The second stage arises when in respect of the consolidation the Officer proceeds to prepare a scheme and at the second stage the Consolidation Officer has, in view of the procedure laid down in Clause (b) of Section 26(2), to follow the procedure laid down in that provision. This has nothing to do with the dispute between a landlord and a tenant as regards the possession of the land in dispute; this is to be dealt with under Section 26(1). Therefore, the order passed by the Consolidation Officer on August 23, 1955, is an order passed under the Tenancy Act, 1948; and if the order is one under the Tenancy Act; 1948, it is obvious that an appeal would lie under Section 74 from the order. Mr. Limaye contends, however, that to so hold would be to land one into a difficulty. He relies upon Section 2(3) which defines a Consolidation Officer as meaning an officer appointed as such under Section 15 by the State Government, and includes any person authorized by the State Government to perform all or any of the functions of the Consolidation Officer under this Act. He says that a Consolidation Officer is the Collector, and, if the Consolidation Officer is the Collector, it would be curious that from an order made by the Collector an appeal would lie to a District Deputy Collector. But as we take the view that the proceedings are proceedings under the Bombay Tenancy and Agricultural Lands Act of 1948 and as an appeal is provided under Section 74, it is obvious that an appeal would lie under Section 74. As I have pointed out-and it will bear repetition to point out-that Section 36 speaks of an order under Chap. II, III or IV 'of this Act' which means the Fragmentation Act, 1947. Mr. Limaye would want us to read 'this Act' as meaning the Tenancy Act, 1948, and to accept this contention would, in effect, amount to holding that we must read the words 'The Bombay Tenancy, 1948' into the words 'The Fragmentation Act, 1947'. It is impossible to accept this contention. It is evident that although Section 26(1) refers to the Bombay Tenancy Act, 1939, it really refers to the Tenancy Act of 1948 because of the provisions contained in the General Clauses Act, and this is not in dispute.
4. The revenue Tribunal took the view that the Additional Assistant Consolidation Officer's order was obviously passed under Chap. IV of this Act. In view of the clear provisions of Section 26(1), it is impossible to accept that proposition. The Bombay Revenue Tribunal was also wrong in holding that as no appeal was allowed under the Fragmentation Act, 1947, there could be no appeal from the order made by the Assistant Consolidation Officer. In the view, which we take, it is clear that the proceedings would be proceedings under the Tenancy Act, 1948, the order would be an order under the Tenancy Act of 1948 and, therefore, an appeal would lie from such an order under Section 74. In our view, for the reasons given above, the conclusion of the Revenue Tribunal cannot be supported.
5. But the Bombay Revenue Tribunal then considered as to what would happen if an appeal lies. This is what they say:. even if the appeal is competent the order setting aside the order of forfeiture of tenancy without calling upon the tenant to pay up the rent in arrears is not justified in law.
Now, it may be logical to take the view which the Bombay Revenue Tribunal has taken in the operative part of the order; but if an appeal is competent, the order made by the Bombay Revenue Tribunal will have to be set aside. The Additional Assistant Consolidation Officer found that the tenant had committed three defaults. When the matter went in appeal, the Prant Officer found that the tenant had committed two defaults. The order made by the Bombay Revenue Tribunal is that the possession of the land was to be restored to the landlord applicant if the possession was with the tenant. Now, in such a case we must make an order consistent with Section 25 of the Tenancy Act, 1948, and, acting under the provisions contained in Section 25(1), we must call upon the tenant to pay the amount of the rent. There is no dispute about what the tenant has to pay to the landlord; this is indicated in the order of the Prant Officer.
6. The application will, therefore, be allowed, the order made by the Bombay Revenue Tribunal will be set aside and the proceedings will be remanded to the Consolidation Officer with a direction that he will call upon the tenant to pay the amount of the rent within the time mentioned in Section 25(1).' After calling upon the tenant to pay the amount of the rent within the specified time, if the tenant fails to pay the rent in time, then the Consolidation Officer will make an appropriate order in accordance with Section 25(1) read with Section 29. There will be no order as to costs.