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Shamrao Nana Aswale Vs. Atmaram Nana Aswale - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1409 of 1976
Judge
Reported in(1978)80BOMLR177
AppellantShamrao Nana Aswale
RespondentAtmaram Nana Aswale
DispositionAppeal allowed
Excerpt:
.....and 74(2) - whether an appeal lies against the decision of mamlatdar under section 70(b)--bombay land revenue code (bom. v of 1879) section 203--maharashtra land revenue code (mah. xll of 1966), section 247(1).;reading section 74(2) of the bombay tenancy and agricultural lands act, 1948 and section 203 of the bombay land revenue code, 1879 and section 247(1) of the maharashtra land revenue code, 1966 there is no doubt that appeal lies against the decision of mamlatdar or a tribunal.;an appeal lies against any decision of the mamlatdar under section 70(b) of the bombay tenancy and agricultural lands act, 1948 independently of the provision of section 74(2) read with the provisions contained in chap. xiii of the bombay land revenue code, 1879 and the maharashtra land revenue code,..........lays down: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. the collector in appeal shall have power to award costs.4. apart therefore from orders under chap. xiii of the bombay land revenue code, there can be no doubt that an appeal lies against other decisions of the mamlatdar under section 203 of that code, which runs as follows;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 this act or any other law for the time being in force, to that.....
Judgment:

Vaidya, J.

1. The above Special Civil Application is directed against a rather extraordinary decision of the Maharashtra Revenue Tribunal, Kolhapur, dated June 17, 1975, confirming the order passed by the Special Deputy Collector, Tenancy Appeals, Sangli, on January 28, 1974, without discussing the merits, holding that no appeal lay against a finding under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, of the Court of Taluka Aval Karkun, Walwas, Islampur, dated November 29, 1972, by which he held that both the petitioner and the respondents were joint tenants who are brothers and were joint tenants in the disputed suit lands.

2. The learned tribunal and the Deputy Collector relied on a decision of a single Judge of this Court in Shantabai Ramchandra v. Pandurang (1972) 75 Bom. L.R. 79, where a view was taken that every decision on the status of a person under the Bombay Tenancy and Agricultural Lands Act, 1948, cannot be treated to be a decision under Section 4 of the Act, and, therefore, appealable under Section 74(1)(a) of the Act.

3. The attention of the learned single Judge was not drawn to Section 74(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, which lays down:

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. The Collector in appeal shall have power to award costs.

4. Apart therefore from orders under chap. XIII of the Bombay Land Revenue Code, there can be no doubt that an appeal lies against other decisions of the Mamlatdar under Section 203 of that Code, which runs as follows;

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 this Act 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.

5. Corresponding to that chapter is now chap. XIII of the Maharashtra Land Revenue Code, 1966, which repealed the Bombay Land Revenue Code, which also provides, under Section 247, as follows:

247. (1) In the absence of any express provision of this Code, 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 or survey officer specified in column 1 of Schedule E under this Code or any other law for the time being in force to the officer specified in column 2 of that Schedule whether or not such decision or order may itself have been passed on appeal from the decision or order of the officer specified in column 1 of the said Schedule

6. It is therefore, patent that if the decision of the Mamlatdar or other authority exercising his powers is the decision under Section 4, then appeal lay under Section 74(1); and if it was a decision about the status of the tenant in regard to the other parts of the definition of the word 'tenant' contained in Section 2(18) which defines 'tenant' as 'the person who holds land on lease and includes a deemed tenant under Section 4, a protected tenant (Section 4A), a permanent tenant (Section 2(10A),' the appeal must lie under Section 203 of the old Bombay Land Revenue Code or Section 247 of the Maharashtra Land Revenue Code, 1966, to the Mamlatdar's superior, the Deputy Collector.

7. The view taken by the Revenue Tribunal and the Deputy Collector in the present case, is, therefore, inconsistent with the provisions contained in Section 74(2).

8. In this connection, a reference must be made to an unreported judgment of Deshpande and Mridul JJ. Ebrahim Yusuf Lambe v. Abdul Razak Abdul Rahiman Mullet (1976) Special Civil Application No. 2110, where even on the basis of Section 74(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, alone the division Bench observed as follows:

.Clause (a) in Section 74(1) calls for broader construction. Every order under Section 4 is made appealable under this clause. Section 4 indicates who can claim to be a deemed tenant of the land. It is an error to assume that section contains mere definition. It confers right, on every one, to claim deemed tenancy if he satisfies the requirement of Section 4. But the wide wording of this section does not admit of excluding other kinds of tenants from its purview. Thus contractual tenant, protected tenant, or permanent tenant also cultivates land personally, and also lawfully which belongs to others, and does not happen to be a person covered by the Clauses (a) to (c). The fact that, section contemplates to cover also persons who cannot lay claim to the said three kinds of tenancies, is not enough to exclude them from the purview of this section for the limited purpose of ascertaining its true content in the context of the scheme of Section 74(1)(a) of the Act. The Legislature presumably did not think it necessary to provide for appeal specifically against order under Section 70(b) separately for this reason and advisedly remained content by providing appeal against order under Section 4 only. We are thus of the opinion that Section 4 in the context of Section 74(1)(a) is wide enough, to cover every order in regard to claim to tenancy passed under Section 70(b) of the Act and the order under consideration of the Awal Karkun, was appealable to the Collector under Section 74(1)(a) of the Act.

With respect, the view enumerated in Shantabai Ramchandra v. Pandurang is not acceptable to us for the above reasons.

9. The division Bench, however, was not inclined to accept the view that an appeal can lie under Section 74(2) read with the provisions of the Bombay Land Revenue Code, Their attention was not brought to another division Bench decision of this Court, where the point has been discussed. In Paygonda Surgonda v. Jingonda (1967) 69 Bom. L.R. 579, it was laid down:

A decision or order made by the Collector under Section 54 of the Civil Procedure Code, 1908, for effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under Section 203 of the Bombay Land Revenue Code, 1879, and is also revisable under Section 211 of the Bombay Land Revenue Code, having regard to the general provisions of Section 203 of the Bombay Land Revenue Code.

10. However, it is 'unnecessary for me to refer the matter to a larger Bench, as the division Bench consisting of Deshpande and Mridul JJ. have also found that an appeal lies against any decision of the Mamlatdar under Section 70(b) independently of the provision under Section 74(2) read with the provisions contained in chap. XIII of the Bombay Land Revenue Code, 1879, and the Maharashtra Land Revenue Code, 1966.

11. In the result, Special Civil Application is allowed. The order passed by the Deputy Collector, Tenancy Appeals, on January 28, 1974, and by the Maharashtra Revenue Tribunal, Kolhapur, on June 17, 1975, are both set aside and quashed; and the case is restored to the file of the Deputy Collector, Tenancy Appeals, Sangli, for disposal in accordance with law.

12. Rule absolute. In the circumstances of the case, the parties to bear their own costs.


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