1. By this petition under Articles 226 and 227 of the Constitution of India the petitioner prays for issuance of a writ of certiorari quashing the order dated October 13, 1959, made by the Additional Commissioner, Nagpur Division, Nagpur, respondent No. 1 hereto, and for a direction that the appeal be heard and decided by respondent No. 1 in accordance with the law.
2. Following facts give rise to this petition. Respondent No. 5, Shewantabai was the landholder of S. No. 41 situate in village Dabhadi, taluq Darwha, district Yeotmal. She transferred that field under a registered deed dated April 27, 1957, to Gangadhar, respondent No.4 hereto. Gangadhar filed a civil suit on July 19, 1957, against petitioner Ramdas alleging therein that he was in possession of the field, that he had performed summer operations in the field and that Ramdas had forcibly dispossessed him. The defence of Ramdas was that he has acquired the status of a protected lessee under the Berar Regulation of Agricultural Leases Act, 1951, hereinafter referred to as the Leases Act. The Court, therefore, framed an issue, whether Ramdas was a protected lessee within the meaning of the Leases Act. The Court then referred that question to the Revenue Officer for its decision under Section 16A of the Leases Act. The reference was heard by the Sub-Divisional Officer, respondent No. 3 hereto. He by his order dated March 13, 1958, held that Ramdas had not acquired the status of a protected lessee, and answered the reference accordingly. Against this decision of the Sub-Divisional Officer the petitioner Ramdas took an appeal to the Collector, Yeotmal. It was heard by the Deputy Collector with revenue appellate powers, respondent No. 2 hereto. He rejected the appeal. The petitioner then preferred a second appeal before respondent No. 1, the Additional Commissioner, who held that the effect of coming into force of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, hereinafter referred to as the new Act, on December 30, 1958, was that he had no jurisdiction to hear the appeal. In this view of the matter he transferred the second appeal to the Bombay Revenue Tribunal for disposal. The reasons given by him are as follows:
The Berar Regulation of Agricultural Leases Act has since been repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, coining into force on 30th December, 1958. Under Section 132(3)(a) of the new Act, these proceedings stand transferred to the corresponding authority under the new Act. It is urged by the appellant's counsel that under Section 132(2) this Court has jurisdiction in the case. I do not agree with the contention, firstly, because I have no powers whatsoever under the new Act which has come into force and secondly any rights which Section 132(2) may secure are restricted only to the right of appeal/revision; they do not extend to the forum by which appeal or revision may be heard. This case is, accordingly, transferred to the Bombay Revenue Tribunal for disposal.
The petitioner, therefore, has preferred this petition.
3. Mr. C. S. Dharmadhikari, learned Counsel for the petitioner, contends that the Additional Commissioner was in error in holding that the second appeal stood transferred to the Revenue Tribunal, a corresponding authority under the new Act. In our opinion, the contention is well-founded. Mr. J.N. Chandurkar, learned Counsel for respondents Nos. 4 and 5, does not oppose this petition.
4. It is first necessary to consider whether a second appeal lay to the Additional Commissioner against an appellate order of the Deputy Collector. As already stated, the proceedings out of which the appeal arises is a reference decided by the Sub-Divisional Officer under Section 1.6A of the Leases Act. Sub-section (2) of Section 17 of the Leases Act provides:
Except where the provisions of this Act provide otherwise, from every decision or order of a Revenue Officer under this Act or the rules made thereunder an appeal shall lie as if such decision or order had been passed by such officer under the Berar Land Revenue Code, 1928.
This Act was passed in 1951. At that time, the Berar Land Revenue Code was in force. It is a matter of history and it is not in dispute that both the Berar Land Revenue Code and the C.P. Land Revenue Act were repealed and the provisions therein were consolidated in and amended by the Madhya Pradesh Land Revenue Code, 1954. Section 41 of that Code which deals with appeals is, therefore, admittedly the relevant provision. We are here concerned with a second appeal from an appellate order made by the Deputy Collector exercising appellate powers. Sub-section (3) of Section 41 originally provided that against any order passed in first appeal by the Deputy Commissioner, a second appeal shall lie to the Board. The provisions of Sub-section (5) of Section 41 stood amended by Act 8 of 1958. The effect of Section 3 of the Commissioner's Act (Act 8 of 1958) read together with item 12(2) of the Schedule is that the word 'Commissioner' gets substituted for the word 'Board' in Sub-section (5) of Section 41 of the M.P. Land Revenue Code. Thus under Section 41(5) of the M.P. Land Revenue Code as amended by the Commissioner's Act, an order made in appeal by the Deputy Commissioner, i.e. the Collector or Deputy Collector, with appellate powers, would lie to the Commissioner. It is not in dispute that the Additional Commissioner is competent to exercise the powers of the Commissioner.
5. It is next to be seen whether the aforesaid position obtaining on the eve of coming into force of the new Tenancy Act has undergone any change by virtue of Section 1.32 of the new Act so far as this case is concerned. That section wais considered by a Full Bench of this Court in a decision reported in Chandheg v. Raje Madhaorao : AIR1961Bom146 F.B.. The facts of one of the cases considered by the Full Bench may briefly be stated. The landlord instituted a suit against his erstwhile tenant for possession of his field on the ground that the period of lease had expired and his tenant was, therefore, not entitled to remain in possession of the field. In answer to the claim of the landlord, the tenant pleaded that he was a permanent tenant in respect of one field and a tenant of antiquity in respect of the other field under the Berar Land Revenue Code and on these allegations he resisted the landlord's claim for possession. The trial Court decreed the plaintiff -landlord's claim in respect of one field but dismissed it in respect of the other. Both the parties appealed. The appellate Court decreed the landlord's claim in full. The tenant, therefore, preferred a second appeal and during the pendency of the second appeal the new Act came into force. A question arose whether the rights between the parties were to be decided in accordance with the law prevailing at the time of the institution of the suit or they were to be decided in accordance with the provisions of the new Act. It would be noticed that the facts of the instant case are similar. The plaintiff has instituted this suit in a civil Court under the ordinary law claiming- possession on the allegation that the defendant is a trespasser. The defendant here is claiming the status of a protected lessee under the Leases Act; in that case status of a tenant of antiquity and a permanent tenant under the Berar Land Revenue Code were claimed by the defendant. The learned Chief Justice who delivered the judgment of the Court after reproducing Section 132(2) of the new Act at page 511 observed:.The suit was an ordinary ejectment suit filed by the landlords under the ordinary law in order to obtain possession of their lands from their tenants. It was not a suit under any of the enactments which have now been repealed. In this suit, the defendants claimed certain rights conferred by the repealed enactments. Mr.Abhyankar has contended that as rights were claimed under the repealed enactments, the suits must be deemed to have been instituted under the provisions of those enactments. This argument cannot be accepted. Section 132 itself draws a distinction between suits in which rights are claimed under the repealed enactments and those instituted under the enactments repealed. The former suits are governed by Sub-section (2) of Section 132, while clause (b) of Sub-section (3) applies to the latter class of suits. The suit in the present case will, therefore, fall under Sub-section (2), and as provided in that Sub-section, it must be continued and disposed of, as if the Tenancy Act had not been passed.' In our opinion, these observations apply with full force to the facts of the present case. In our judgment, therefore, references made under Section 16A of the Leases Act or appeals arising out of those proceedings which were pending: before the Revenue Courts at the time the new Tenancy' Act came into force will have to be decided, as if the new Tenancy Act had not been passed. The Additional Commissioner has held that the appeal pending before him stood transferred to the Revenue Tribunal under Section 132(5)(a) of the new Act. That provision runs as follows: (3) Notwithstanding anything contained in Sub-section (2)- (a) all proceedings for the termination of the tenancy and ejectment of a tenant or for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act, before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act.
On reading this clause it is clear that to attract its provisions the following1 conditions have to be satisfied. The proceedings should be (i) for termination of the tenancy or (ii) for ejectment of a tenant or (iii) for recovery or restoration of possession. The second condition is that these proceedings must be under the provisions of any of the enactments repealed and the third condition is that the proceedings should be pending before a Revenue Officer or in appeal or revision before any appellate or revising authority on the date the new Act came into force. Now, in the instant case, it cannot be said that the proceedings are either for termination of the tenancy or for ejectment of a tenant or for recovery or restoration of possession under the repealed Act i.e. the Leases Act. The Revenue Officer was only answering a reference made to him by a civil Court under Section 16A of a repealed Act (Leases Act). Beyond recording an answer to the question referred to him and returning the reference with his answer to the referring civil Court the RevenueOfficier has no jurisdiction to make any other order. That being the position, Section 132(5)(a) of the new Tenancy Act has no application to the facts of the present case. The apposite provisions that would govern the case, as already stated, are the provisions of Sub-section (2) of Section 132 of the new Act. The error which has vitiated the order of the Additional Commissioner has resulted in failure to exercise the jurisdiction vested in him under law. The order is, therefore, liable to be quashed.
6. In the result, the impugned order of respondent No. 1 is quashed and the case is sent back to respondent No. 1 for disposal in accordance with law.
7. Before parting with the case, it is necessary to mention that Mr. Chandurkar, learned Counsel for respondents Nos. 4 and 5, had raised a contention before us that on proper construction of Sub-section (2) of Section 17 of the Leases Act, there was no right of second appeal in a matter arising out of a reference under Section 16A. We do not express any opinion on this question as this question has not been dealt with by the appellate authority. It is open to Mr. Chandurkar to raise that question before the Commissioner if so advised.
8. As this petition was not opposed by any of the respondents, we make no order as to costs.