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Motibhai Tricumbhai Desai Vs. Chhaganbhai Amthabhai Desai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1109 of 1956
Judge
Reported in(1958)60BOMLR1238
AppellantMotibhai Tricumbhai Desai
RespondentChhaganbhai Amthabhai Desai
DispositionAppeal dismissed
Excerpt:
.....74 - preliminary and final orders contemplated under section 25 whether appealable to district deputy collector--whether section 73(2) confers jurisdiction to pass substantive order.; the mamlatdar, in an application filed by the owner of certain agricultural lands, for ejectment of his tenant for non-payment of rent, passed an order on december 5, 1951, directing the tenant to pay a certain amount within fifteen days, failing which, the tenancy was liable to be terminated. this order was communicated to the tenant on december 17, 1951. on december 29, 1951, the tenant appealed to the district deputy collector but his appeal was dismissed on february 2, 1952, and intimation of its dismissal was given on february 11, 1952. in the meanwhile on february 6, 1952, the mamlatdar passed an..........17, 1951. on december 29, 1951, defendants nos. 1 and 2 preferred an appeal to the district deputy collector, kaira, nadiad prant. that appeal was heard and decided on february 2, 1952, and intimation of dismissal of the appeal was given on february 11, 1952. in the meanwhile, on february 6, the mamlatdar passed an order observing that on december 5, 1951, the defendants were directed to pay rs. 989-5-0 within 15 days of the receipt of the order failing which the tenancy in respect of the said lands will be terminated, and instead of paying up the dues within the specified time, the defendants preferred an appeal to the district deputy collector, kaira, nadiad prant, which was dismissed on february 2, 1952, and the dues had not been paid to the plaintiff. the mamlatdar, therefore,.....
Judgment:

J.C. Shah

1. The plaintiff is the owner of agricultural lands bearing Survey Nos. 931, 933, 940, 930, 929, 932/1, 932/2-3, 934/1 and 934/2. The defendants were the tenants of the plaintiff of those lands. The defendants failed to pay the rent due by them for the years 1948-49 and 1949-50. The plaintiff then filed an application before the Mamlatdar for an order in ejectment against the defendants for non-payment of rent for the said two years. The Mamlatdar passed an order directing defendants Nos. 1 and 2 to pay one-third of the crop share valued at Rs. 989-5-0 within 15 days failing which it was declared that the tenancy was liable to be terminated. This order was passed on December 5, 1951, and was communicated to the defendants on December 17, 1951. On December 29, 1951, defendants Nos. 1 and 2 preferred an appeal to the District Deputy Collector, Kaira, Nadiad Prant. That appeal was heard and decided on February 2, 1952, and intimation of dismissal of the appeal was given on February 11, 1952. In the meanwhile, on February 6, the Mamlatdar passed an order observing that on December 5, 1951, the defendants were directed to pay Rs. 989-5-0 within 15 days of the receipt of the order failing which the tenancy in respect of the said lands will be terminated, and instead of paying up the dues within the specified time, the defendants preferred an appeal to the District Deputy Collector, Kaira, Nadiad Prant, which was dismissed on February 2, 1952, and the dues had not been paid to the plaintiff. The Mamlatdar, therefore, passed an order terminating the tenancy of the defendants in respect of the suit lands and directed that the possession of the suit lands be delivered to the plaintiff. In enforcement of this order, the plaintiff obtained possession of the suit lands on February 7, 1952, from the tenants. Against this order dated February 6, 1952, the defendants preferred an appeal to the District Deputy Collector, contending that payment of the amount directed by the order dated December 5, 1951, was in fact made within the period prescribed by the order and that the defendant could not therefore be evicted from the land. That appeal was allowed on August 2, 1952, by the District Deputy Collector. The District Deputy Collector observed that a stay order was passed on December 29, 1951, directing stay of enforcement of the order of the Mamlatdar pending decision of the appeal. He also observed that the Mamlatdar was wrong in handing over possession to the plaintiff without 'giving 15 days' time' to the defendants for payment. The plaintiff then filed Civil Suit No. 243 of 1952 in the Court of Civil Judge, Junior Division, Nadiad, against the defendants for a declaration that the order passed by the District Deputy Collector in Tenancy Appeal No. 150 of 1952 on August 2, 1952, was ultra vires and without jurisdiction and for a permanent injunction restraining the defendants from taking possession of the suit lands from the plaintiff.

2. The suit was resisted by the defendants, who contended inter alia that the order of the District Deputy Collector was not ultra vires. The contention raised by the defendants was upheld and the plaintiff's suit was dismissed with costs. In appeal to the District Court, the order of the trial Court was confirmed.

3. In this appeal, Mr. Choksi on behalf of the plaintiff contends that the order passed by the District Deputy Collector was ultra vires on two grounds : (1) that two appeals are not competent against an order under Section 25 of the Bombay Tenancy and Agricultural Lands Act and (2) that in any event the order passed by the Mamlatdar on, February 6, 1952, was by Section 73(2) of the Bombay Tenancy and Agricultural Lands Act not made appealable. In my view, there is no substance in either of the two contentions raised by Mr. Choksi. Section 25 of the Bombay Tenancy and Agricultural Lands Act, so far as material, provides:

Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord flies any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding, within fifteen days from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated:

Section 25, contemplates two orders : (1) a preliminary order on an application for ejectment of the tenant calling upon the tenant to tender the amount of arrears of rent within 15 days of the order and (2) a final order either terminating or not terminating the tenancy. If the tenant complies with the preliminary order, the statute prescribes that the Mamlatdar shall pass an order that the tenancy has not been terminated. If the tenant does not comply with the order it is implicit in Section 25 that the Mamlatdar may pass an order terminating the tenancy. The order passed by the Mamlatdar on December 5, 1951, was a preliminary order calling upon the tenant to make payment of the arrears of rent within 15 days. Before the expiry of those 15 days, the defendants preferred an appeal to the District Deputy Collector and obtained a stay order. The District Deputy Collector passed a final Order on February 2, 1952, confirming the order of the Mamlatdar. The order passed by the Mamlatdar could evidently be enforced after the expiry of 15 days given to the tenant and only if the arrears of rent were not paid within the period allowed. But the Mamlatdar, before the expiry of 15 days and before the order of the District Deputy Collector was communicated to the defendants, passed an ejectment order against the defendants and that order was held by the District Deputy Collector as irregular in appeal.

4. Section 74 of the Bombay Tenancy and Agricultural Lands Act provides that:

An appeal against the orders of the Mamlatdar and Tribunal may be filed to the Collector in the following cases:

(a) ...

(b) ...

(l) an order under Section 25,

5. In my judgment, an appeal lies to the District Deputy Collector against orders preliminary as well as final. The order dated February 6, 1952, passed by the Mamlatdar, before the expiry of the period of fifteen days from the date of the order passed by the District Deputy Collector was an irregular order and was liable to be set aside in appeal. The order of the District Deputy Collector was in my view passed in exercise of jurisdiction expressly conferred upon that officer. Sub-section (2) of Section 73 does not confer jurisdiction to pass a substantive order : it only prescribes the procedure for executing orders made under powers conferred by other provisions of the Act. The order passed by the Mamlatdar dated February 6, 1952, was passed in exercise of jurisdiction under Section 25 of the Act and was, therefore, appealable.

6. The Courts below, in my judgment, were right in holding that the order passed by the District Deputy Collector was not ultra vires. The appeal, therefore, fails and is dismissed with costs. Record to be returned immediately.


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