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Rachagouda Gurusiddappa Patil Vs. Kamabai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Petns. Nos. 269 and 270 of 1956
Judge
Reported inAIR1963Mys21
ActsTenancy Laws - Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 4, 70, 71, 74, 74(I), 85 and 85A; Specific Relief Act - Sections 42
AppellantRachagouda Gurusiddappa Patil
RespondentKamabai and ors.
Appellant AdvocateH.B. Datar, Adv.
Respondent AdvocateA.V. Albal, Adv., for Respondents 4 to 8 in No. 269/56 and for Respondent 6 in No. 270/56
Excerpt:
- labour & services. dismissal from service: [s.r. bannurmath & a.n. venugopala gowda,jj] false information furnished by the workman in obtaining employment - direction of the single judge to reinstate the workman without any back wages and continuity of service held, though the single judge has held that the findings of the tribunal were not legal, still, has failed to exercise power of judicial review and thereby has committed an error calling for interference. since it has been established by the appellant/employer that the respondent/workman was guilty of an act of misrepresentation for security employment, the tribunal and the single judge have shown undue sympathy and generosity to the workman in interfering with the punishment imposed by the management, which in the facts and.....hombe gowda, j.1. i have had the advantage of perusing the learned, exhaustive and instructive judgments of my learned brothers hegde, j. and kalagate, j., proposing the answer to the question referred to the full bench for opinion. while hegde, j., has reached the conclusion that our answer to the question should be in the negative, kalagate, j., is of the opinion that it should be in the affirmative. after carefully examining the reasoning on which the answer is based, i am in agreement with the conclusion arrived at by hegde j., that the answer to the question referred to us should be in the negative. i wish only to add a few words and my remarks should, therefore, be very brief.2. i do not propose to review the decided cases of the bombay high court on the subject since all those.....
Judgment:

Hombe Gowda, J.

1. I have had the advantage of perusing the learned, exhaustive and instructive judgments of my learned Brothers Hegde, J. and Kalagate, J., proposing the answer to the question referred to the Full Bench for opinion. While Hegde, J., has reached the conclusion that our answer to the question should be in the negative, Kalagate, J., is of the opinion that it should be in the affirmative. After carefully examining the reasoning on which the answer is based, I am in agreement with the conclusion arrived at by Hegde J., that the answer to the question referred to us should be in the negative. I wish only to add a few words and my remarks should, therefore, be very brief.

2. I do not propose to review the decided cases of the Bombay High Court on the subject since all those decisions and the principle deducible therefrom have all been elaborately dealt with by my learned Brothers in the course of their orders. The principle of law that if a statute purports to exclude the ordinary jurisdiction of Court, it must do so either by express terms or by the use of such words as would necessarily lead to the inference of such exclusion is enunciated by the Privy Council in Secy. of State v. Mask and Co., in these words:

'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such, exclusion must either be explicitly expressed or clearly implied.'

This principle was followed by their Lordships of the Supreme Court in Sasamal v. Bissoi, C. A. No. 92 of 1959 : : [1962]3SCR673 while construing Section 7 (1) of the Orissa Tenants Protection Act of 1948. Their Lordships observed in the course of their judgment in the said appeal as follows:

'There can be no doubt that ordinarily a dispute in regard to the relationship between the parties such as that between a landlord and tenant would be a dispute of a civil nature and would fall within the competence of the Civil Court. If the respondents contend that the jurisdiction of the Civil Court to deal with such a civil dispute has been taken away by Section 7 (1) we must enquire whether Section 7 (1) expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference. The relevance and materiality of both these principles are not in dispute.'

After examining the several provisions of the Orissa Protection of Tenants Act, 1948, their Lordships held that the jurisdiction of the Civil Court is not excluded. In arriving at this conclusion, their Lordships took into consideration the fact that generally such Tribunals do not possess the necessary equipment and training to adjudicate civil rights of parties. Their Lordships observed in the course of their judgment as follows :

'As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector, the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry.' Bearing this principle in mind, we have to decide whether the jurisdiction of Civil Courts is taken away from them and is vested in the Mamlatdar under the Bombay Tenancy and Agricultural Lands Act either by an express provision or by necessary implication. It cannot be disputed that there is no provision in the Bombay Tenancy and Agricultural Lands Act which specifically confers jurisdiction on the Mamlatdar to grant a declaratory relief to the effect that a particular person is or is not a tenant without any reference to the purpose of the Act. In the absence of any such specific provision, it cannot be reasonably held that the Mamlatdar is competent to grant such a relief, unless by necessary implication of construction of the several provisions of the Act the irresistible conclusion should be to the effect that he has such powers. While conceding that there is no specific provision in the Bombay Act which confers powers of granting a declaratory decree on the Mamlatdar, Mr. Datar for the petitioners contended that a combined reading of Sections 70, 85, 85-A and other provisions of the. Act should lead us to the inescapable conclusion that the Mamlatdar has such power by necessary implication. According to Mr. Datar, the Mamlatdar who has powers under Section 70 of the Act to decide certain questions referred to therein should be deemed to have jurisdiction to give a mere declaratory relief to the effect that a person is or is not a tenant. In support of his contention, he strongly relied upon Sections 85, 85-A and other provisions of the Act. How far this contention that these provisions of the Act by necessary implication confer jurisdiction on the Mamlatdar to give a mere declaration is correct, has been very elaborately dealt with by Hegde, J., in the course of his order. I entirely agree with his reasoning and conclusion and as such I feel that it is not necessary for me to restate them. As observed by the Judicial Committee in Crawford v. Richard Spooner, (1846) 6 Moo PC 1,

'The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Act; we cannot add, and mend, and, by construction, make up deficiencies which are left there.'

The principle, therefore, is that while the Courts are entitled to resolve a difficulty in construction of a provision of a statute, omissions and deficiencies must not be supplied by the Courts by unnecessarily straining the language of the Statute. The principle that what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable and necessary implication, means in its application that a statute may not be. extended so as to meet a 'casus omissus' (vide Lord Howard de Walden v. Inland Revenue Commissioner, (1948) 2 All ER 825). Examined in the light of these principles, the provisions of the Act on which Mr. Datar strongly relied in support of his argument do not lead to the inescapable conclusion that power to give a mere declaratory relief without any reference to the purpose of the Act is conferred on the Mamlatdar.

3. There is another compelling reason which induces me to reach this conclusion and that is this. It is undisputed that the Civil Courts in India derive their power of making a declaratory decree under Section 42 of the Specific Relief Act. Courts have no power to give a decree independently of that section. The proviso to Section 42 is paramount and its effect cannot be avoided. The said proviso reads:

'Provided that no Courts shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.'

Therefore, the power of the Civil Courts merely to give a declaratory decree under Section 42 of the Specific Relief Act cannot be exercised by them in cases where the party who seeks such a declaration is able to seek further relief than a mere declaration of his title or right. Moreover, it is not a matter of absolute right of a person to obtain declaratory decree in Civil Courts; the Courts can grant or refuse to grant a mere declaratory decree. They are bound to exercise sound judgment as to whether it is reasonable or not in the circumstances of each case to grant such a relief.

4. The Civil Courts are entitled to refuse to grant a mere declaratory decree where the cases are of such a nature that the decree for all purposes is made ineffective. Thus, the power of the Civil Court to grant merely a declaratory decree under Section 42 of the Specific Relief Act is not absolute and is very much restricted. If the argument of Mr. Datar the learned counsel for the petitioners to the effect that the Mamlatdar is entitled to pass a mere declaratory relief irrespective of the fact whether it is for the purpose of the Act or not is accepted, it would mean that the Mamlatdar can give a declaratory decree without any restriction. He is bound to give such a declaration even though it may be for all purposes ineffective and useless. In my view, we should avoid such a construction as the same leads to inconvenience, absurdity, hardship or injustice, presumably not intended by those who made the law. I cannot usefully add anything more to the exhaustive order of Hegde, J., I agree with him that the answer to the question referred to the Pull Bench should be in the negative.

K.S. Hegde, J.

5. The question referred to the Full Bench for its opinion is:

'Whether, under the provisions of the Bom bay Tenancy and Agricultural Lands Act 1948, the Mamlatdar can entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act?' That question really involves two separate questions, i. e., (1) whether the Mamlatdar can entertain and decide an application seeking any declaratory relief; and (2) if so, whether he can grant what we may for the sake of convenience call, a negative declaration?

6. These questions as well as some other questions, have been the subject-matter of considerable controversy in the High Court of Bombay. Several decisions of that High Court, to some of which reference will be made in the course of this judgment, have dealt with these controversies. These controversies were again revived in this Court. This Full Bench has been constituted to resolve those controversies.

7. Sri H. B. Datar, who argued in support of the view that the Mamlatdar is competent to give the declaratory relief, mentioned above, either in a positive form or in a negative form, primarily relied on Section 70 of the Bombay Tenancy and Agricultural Lands Act (to be referred to as the 'Act' hereinafter) as the source of the power of the Mamlatdar. His contention was that any dispute falling within any of the clauses in Section 70 has to be exclusively decided by the Mamlatdar and that Civil Court has no jurisdiction to decide those questions in view of Section 85 Which says that

'no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.' He also relied on sub-section (2) of that section which says that no order of the Mamlatdar, the Tribunal, the Collector or the Bombay Revenue Tribunal or the State Government made under the Act shall be questioned in any civil or criminal Court. According to him, the word 'decide' found in Section 70 includes within its scope competence to declare the existence or non-existence of a right also. Further according to him on a reading of Section 4 with Section 74 (1) (a) of the 'Act', it is clear that the Mamlatdar can grant the declaratory relief mentioned above.

8. Sri A. V. Albal, who stood for the position that the Mamlatdar cannot grant any declaratory relief strenuously contended that the duties and functions of the Mamlatdar can be performed only while carrying out some 'purpose of the Act'; and for finding out the 'purpose of the Act' one must look to the remaining provisions in the 'Act'. According to him, under no circumstance the Mamlatdar can grant a declaratory relief.

9. It may be noted that under Section 85, the Civil Court's jurisdiction to settle, decide or deal with any question is only excluded 'if that question is by or under this Act required to be settled, decided or dealt with by the Mamlatdar .........' As observed by the Judicial Committee in , the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Construing Section 7 (1) of the Orissa Tenants Protection Act, 1948, the Supreme Court in Civil Appeal No. 92 of 1959 : : [1962]3SCR673 on its file observed:

'It is true that having regard to the beneficent object which the Legislature had in view in passing the Act its material provisions should be liberally construed. The Legislature intends that the disputes contemplated by the said material provisions should be tried not by ordinary Civil Courts but by tribunals specially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberal construction.

While bearing this principle in mind we must have regard to another important principle of construction, and that is that if a statute purports to exclude the ordinary jurisdiction of Civil Courts it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. As the Privy Council has observed in :

'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied'.

There can be no doubt that ordinarily a dispute in regard to the relationship between the, parties such as that between a landlord and a tenant would be a dispute of civil nature and would fall within the competence of the Civil Court. If the respondents contend that the jurisdiction of the Civil Court to deal with such a civil dispute has been taken away by Section 7 (1) we must enquire whether Section 7 (1) expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference. The relevance and materiality of both these principles are not in dispute.'

In another portion of that judgment it is observed:

'As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector, the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry.'

10. Section 70 begins by saying 'for the purposes of this Act, the following shall be the duties and functions to be performed by. the Mamlatdar'. Section 70 does not purport to confer any jurisdiction on the Mamlatdar. It merely enumerates his duties and functions 'for the purposes of the Act'. On a plain interpretation of these words, it appears that the duties and functions of the Mamlatdar enumerated in the several clauses of Section 70, can be performed only 'for the purposes of the Act' and not otherwise. The 'Act' confers jurisdiction on the Mamlatdar to decide certain matters enumerated in the several provisions contained therein. Section 70 sets out the duties and functions to be performed by the Mamlatdar while exercising the powers conferred on him by other provisions. For example, Section 70 (c) says that the Mamlatdar shall perform the duty or function of determining the rates of rent under Section 9; Clauses (d) to that section says that he has the duty or the function to decide dispute regarding class of land under Section 9-A.

In most of the clauses in Section 70, the performance of the duties or the functions of the Mamlatdar are pointedly linked with the powers conferred on him under some other provision. Clauses (me) and (n) relate to ancillary powers. Only clauses which do not refer to the power conferring sections are Clauses (a), (b) and (c). Evidently those clauses do not enumerate the power conferring Sections as the jurisdiction of the Mamlatdar to decide the questions mentioned in those clauses have to be gathered from numerous sections. That being the case, the Legislature must have thought it not wise to enumerate those sections lest any omission should impinge on the powers of the Mamlatdar.

Clause (a) to Section 70 says that for the purposes of the Act the Mamlatdar shall perform the duty or function of deciding whether a person is an agriculturist. 'Agriculturist' is defined in Section 2 (2) as meaning a person who cultivates land personally. 'To cultivate' is denned in Section 2 (5). 'To cultivate personally' is defined in Section 2 (6). 'Land' is denned in Section 2 (8). 'Tenant' is defined in Section 2 (18) and that definition includes a person who is deemed to be a tenant under Section 4, which says that, a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant. Whenever the question whether a particular person is a tenant or not arises for determination, the Tribunal concerned has to decide (1) whether he is an agriculturist; (2) whether he holds land on lease; and (3) whether the land is agricultural land -- see Shivappa Satawappa v. Gajanan Chintaman, : AIR1954Bom107 . Hence it would have been unwise on the part of the Legislature to refer in Section 70 (a) to the Sections under which those questions might come up for decision. It may be noted that the title of the 'Act' is Bombay Tenancy and Agricultural Lands Act. 'Tenancy' and 'Agricultural Lands' are the two basic subjects taken up for legislative treatment in that enactment.

11. The considerations mentioned by me, a little while ago, must have weighed with the Legislature for not mentioning the related provisions in Clause (b) of Section 70 as well just to mention only some of the sections, where the question whether a party before him is a tenant or not comes for decision before the Mamlatdar are 9-A, 13, 15, 20, 23, 25, 27, 29, 31, 32, 33, 34, 37, 38, 41 and 43.

12. Clause (o) of Section 70 also covers various matters. It has two aspects; (1) matters referred to the Mamlatdar by the 'Act' e. g., those referred under Section 9; and (2) those referred to him under the 'Act' e. g., matters included in Sections 72-A, 72-B 72-C, etc.

13. An examination of the several clauses in Section 70 leads one to the conclusion that the duties and functions required to be performed by the Mamlatdar are those that have to be performed, while exercising the powers conferred on him under other provisions of the 'Act'. Otherwise, there was no purpose in mentioning in the various clauses of Section 70 the sections under which the Mamlatdar has to decide certain questions. No provision in the 'Act' is shown as conferring jurisdiction on the Mamlatdar to grant a declaratory relief. He, not having any plenary powers, cannot be held to be competent to grant such a relief in the absence of clear conferment of powers on him.

14. One comes to the same conclusion when he examines the provisions providing for appeals (section 74). No appeal is provided against any decision under Section 70 as such. A dispute of the type with which we are concerned in this case, raises serious questions of fact for decision and if such a dispute was intended to be tried by the Mamlatdar, the Legislature would have certainly provided for an appeal against his order. The 'Act' has provided for appeals against the orders of the Mamlatdar passed under various sections enumerated in Section 74. Some of the orders against-which appeals are provided, comparatively speaking, are of much smaller consequence than the declaratory relief with which we are concerned in this case. If Section 70 is a power conferring section, no satisfactory explanation is forthcoming why no appeal is provided against orders under Clauses (a) and (b) of Section 70.

It is urged that an appeal against an order passed under Section 70 (b) is provided in Clause (a) of Section 74 (1) which says that an appeal against the orders of the Mamlatdar under Section 4 may be filed to the Collector. Section 4 as such does not require the Mamlatdar to decide any question. It is only a definition clause. Why then Section 74 (i) (a) provides for an appeal against an order under Section 4? To answer that question, we must go to the history of Section (section 4). Section 2-A of the Bombay Tenancy Act, 1939 conferred powers on Mamlatdars to declare at the instance of a landlord that his opponent is not his tenant. The interested parties were required to move the Mamlatdar for necessary declaration within the time prescribed in that Act. Mamlatdars ceased to have any jurisdiction to entertain applications for declarations contemplated by Section 2-A after the expiration of the period mentioned in that Act. Appeals as well as revisions were provided against the orders made by the Mamlatdars under Section 2-A. By the time the 'Act' came into force, the period prescribed under the 1939 Act had expired. But the possibility of pendency of appeals or revisions was there. The 'Act' did not make any provision similar to Section 2-A of 1939 Act, but. Explanation I to Section 4 says

'A person shall not be deemed to be a tenant-under this section if such person has been on an application made by the owner of the land as provided under Section 2-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.'

Possibly, the Legislature visualised the possibility of a retrial of the question at the instance of the appellate or revisional authority and therefore, it wanted to provide an appeal against the order as a result of fresh enquiry. The fresh order is an order falling under the Explanation I to Section 4 and therefore, an appeal is likely to have been provided against such an order under Section 74 (1) (a). Even if we accede to the contention that Section 74 (1) (a) provides for appeals against orders under Section 70 (b) there is no explanation for not providing any appeal against orders under Section 70 (a).

15. Those who contend for the view that Section 70 confers powers on the Mamlatdar to give even declaratory reliefs, overlook not only the import of the expression 'for the purposes of this Act' found in that section, but they also ignore the fact that a declaratory relief is a discretionary relief, and not a relief which a party is entitled to as of right. It was contended by Sri Datar that one of 'the purposes of the Act' is to decide whether a person is a tenant or not. In other words, his contention was that the purposes of the 'Act' are those mentioned in Section 70. This view cannot be supported by the language employed in Section 70. There is no justification for straining the language used in that section and placing upon it a construction which cannot be justified either by the rules of grammar or by the canons of construction of statutes. The construction contended for amounts to rewriting of the section by saying 'for the purposes mentioned in this section the following shall be the duties and functions to be performed by the Mamlatdar'. It must be remembered that that section refers to 'for the purposes of this Act' and not 'for the purposes mentioned in this section'. We must note that the Mamlatdar is constituted as a special Tribunal to decide certain matters arising under the 'Act' with a view to implement the provisions of the 'Act'. He is not constituted as one more Court in the hierarchy of Courts, with exclusive jurisdiction to try all cases in which directly or incidentally disputes enumerated in Section 70 arise for determination whether the same has anything to do with the 'purposes of the Act' or not. If the argument advanced by Sri Datar is accepted as sound, it may lead to anamolous positions. Disputes which have nothing to do with the protections granted under the 'Act' can by trick of pleading be brought before the Mamlatdar either with a view to prolong the litigation or with a view to take advantage of his unfamiliarity with civil law. If Sri Datar's interpretation is accepted as correct then the flood-gates for speculative litigation would be thrown open. I find it difficult to believe that the Legislature could have intended such a situation to arise. Even the Civil Court's jurisdiction to grant a declaratory relief, despite the fact it possesses wide jurisdiction in the matter of deciding civil disputes, is controlled by the provisions contained in Section 42 of the Specific Relief Act. But, if the contention of Sri Datar is correct, no restrictions are placed on the powers of the Mamlatdar for granting or refusing to grant declarations on the topics mentioned in Section 70. I hesitate to think that anything so drastic would have been contemplated by the Legislature.

16. This takes me to the decided cases on the point in controversy. Necessarily most of those decisions were rendered by the Bombay High Court. The scope of Section 70 came up for consideration before a Bench of the Bombay High Court consisting of Shah, J., (as he then was) and Gokhale, J., in Special Appln. No. 3059 of 1956 (unreported). In that case, the petitioner and the first respondent were full brothers. At one time they were members of a joint Hindu family. In the year 1940, the first respondent obtained tenancy of land, in S. No. 146 of Bhandarkavate, from one Madhavaraj Deshpande who was the owner of the land. The first respondent filed Tenancy Suit No. 68 of 1955 in the Court of the Mamlatdar of South Sholapur alleging that he was the sole tenant of the land, S. No. 146, obtained from Madhavaraj Deshpande and that the petitioner had no interest in the tenancy but had wrongfully dispossessed him. On these allegations the first respondent claimed a declaration that the petitioner was not a tenant of S. No. 146. The question for consideration was whether such an application was maintainable. Shah, J., who delivered the judgment of the Court observed:

'By the provisions contained in the Bombay Tenancy and Agricultural Lands Act, especially Sections 70 and 85 the jurisdiction of the Civil Court to entertain certain suits and try certain questions has been excluded. As the jurisdiction conferred upon the Tenancy Court is in derogation of the jurisdiction conferred upon the Civil Court, the provisions of Sections 70 and 85 must be strictly construed. By Section 70 one of the duties imposed on the Mamlatdar is to decide whether a person is a tenant or a protected tenant. That, in our view, contemplates a decision by the Mamlatdar of a dispute between a landlord and a tenant and not between two persons who claimed to be the owner of certain tenancy rights. In our view, the Tribunal was in error in assuming that the Tenancy Court had jurisdiction to entertain the proceedings filed by the respondent.'

A somewhat similar question came up before Dixit and Shelat, JJ., in Maganbhai Kesarbhai Patel v. Bombay Revenue Tribunal, Special Civil Appln. No. 278 of 1957 (Bom.) (unreported). That was an application for declaration that the second opponent is not a sub-tenant in the suit property. Dealing with the arguments of Sri Oza, the learned Counsel for the applicant-tenant, that the application fell within the ambit of Section 70 (b), Dixit, J., who delivered the judgment of the Bench observed :

'Now it is true that if an application for possession is made, and in such an application, the question arises whether a particular person is or is not a sub-tenant, it is clear that the Mamlatdar will have authority to decide the question whether the person is or is not a sub-tenant. But it is a very different thing from saying that the Mamlatdar will have power to give a declaration that a particular person is not a sub-tenant. The relief by way of a declaration is a relief which falls within the scope of the Specific Relief Act, for Section 42 provides relief by way of a declaration. We are, therefore, unable to accept the argument of Mr. Oza, that his application is an application under Section 70. He concedes that his application cannot fall within Section 29, because he is in possession and there is no question of his applying for possession as against the second opponent. In saying that the second opponent is not a sub-tenant, the applicant is asking the Court to make a declaration that the second opponent is a trespasser. Now, it may be that the Mamlatdar has power to decide the question whether a person is a tenant or a trespasser, but in this case, the applicant is asking for a negative declaration that the second opponent is not a sub-tenant. We think that this application is misconceived.' The scope of Section 70 (b) read with Section 85 (i) came up for consideration before Chagla, C. J., sitting singly, in Trimbak Sopana v. Gangaram Mhatarba, : AIR1953Bom241 . In that case, the opponent filed a suit against the petitioner in a Civil Court for possession of the suit properties. The opponent's contention was that the petitioner was a trespasser. The defence taken up by the petitioner was that he was not a trespasser but a protected tenant. The Joint Civil judge, Junior Division, came to the conclusion that the issue as to whether the defendant was a trespasser or a protected tenant was an issue which was triable under Section 70 (b) by the Mamlatdar and he had no jurisdiction to try that issue. Therefore, he returned the plaint for presentation to the proper Court. When the matter was taken up in appeal to the Assistant Judge at Ahamadnagar, the learned Asst. Judge held that the Civil Court had jurisdiction to decide whether the defendant was a tenant or a trespasser and he remanded the case to the trial Court. But when the case was taken up to the High Court, the learned Chief Justice held that under Section 70 (b) of the 'Act', all questions with regard to the status of a party, when the party claims the status of a protected tenant, are left to be determined by the Revenue Court, and the jurisdiction of the Civil Court is ousted. He further observed that when the Legislature has left it to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not, it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or a protected tenant and he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant. Though this decision is not directly on the point that we are considering in this case, and it is possible to distinguish the same, there is no denying of the fact that this decision does help the contention that 'the purposes of the Act' are those found in Section 70.

17. In the above case, no notice was taken of the fact that the duty of the Mamlatdar arises only if some 'purposes of the Act' come into play. The learned Judge was of the opinion that if the landlord is allowed to go to a Civil Court and sue the defendant on the ground that he is a trespasser even when the defendant contends that he is a tenant on the land really no occasion would ever arise for the Mamlatdar to decide the issue as to whether a person is a tenant or a protected tenant; if a person could only go to the Mamlatdar in those cases where he admitted that the defendant was his tenant or a protected tenant, then the issue as to whether the person is a tenant or a protected tenant would not arise; such an issue can only arise when there is a dispute as to the status of the particular person, and it is only when an allegation is made that the person is not a tenant or a protected tenant that the Mamlatdar would be called upon to try such an issue; it is clear that the question whether a person is a tenant or a protected tenant is not a jurisdictional fact as far as the Mamlatdar is concerned, but is a fact in issue. But these reasonings miss the point that the Mamlatdar gets jurisdiction only when some proceedings are instituted before him to carry out the 'purposes of the Act'. The plaintiff who comes to Court with the allegation that the defendant is a trespasser will have to establish that fact. If he does not do so, his suit fails. In such a dispute, the Mamlatdar does not come into the picture. The Mamlatdar himself has jurisdiction to try the question as to whether a person is a tenant or not only if that point arises in some proceedings before him, instituted under some provision of the 'Act'.

18. The next circumstance that impressed the learned Judge can be best put in his own words:

'There is another very serious difficulty which would arise if Mr. Tarkunde's views were to be accepted. Assuming that the Civil Court was to hold that, under those circumstances, the Civil Court would have no jurisdiction to pass a decree in favour of the plaintiff or to deal further with the suit and the matter will have to go to the Mamlatdar. Suppose in the proceedings taken before the Mamlatdar by the landlord the Mamlatdar came to the conclusion that the defendant was not a protected tenant, we would then have one decision by the Civil Court and a contrary decision on the same point by the Revenue Court, and the question would arise which view was to prevail. It is in order to avoid such a conflict that the Bombay Tenancy and Agricultural Lands Act has ousted the jurisdiction of the Civil Court to determine the issue as to whether the defendant is a protected tenant or not.'

I do not think that this is a proper approach to the question. The question for decision before the Civil Court was whether the defendant was a trespasser. If it had been held that he was a trespasser, then the necessary result would follow. On the contrary, if the Court had been unable to hold that he was a trespasser, the suit would have to fail. There was no occasion for the Civil Court to pronounce whether he was a tenant or not excepting perhaps incidentally in considering the question of trespass. It must be remembered that the Civil Court has a wide jurisdiction under Section 9, Civil Procedure Code to decide all issues arising before it either directly or incidentally whereas the Legislature has confined the jurisdiction of the Mamlatdar to decide disputes mentioned in Section 70 and that only when they relate to 'the purposes of the Act'.

19. The next decision that was brought to our notice bearing on the point in question is the case of Dhondi Tukaram v. Dadoo Piraji, 55 Bom LR 663 : AIR 1954 Bom 100. That case at the first instance came up before Shah, J. The facts of that case were similar to the facts in Trimbak Sopana's case, : AIR1953Bom241 . That was also a suit where the plaintiff sued for possession of the suit properties in a Civil Court on the ground that the defendant was a trespasser. The defendant pleaded that he was a tenant on the land. The question was whether the Civil Court could go into the issue, whether the defendant was a tenant or a trespasser. Shah, J., while referring the case to a Bench, observed:

'Undoubtedly by Section 70 of the Act (Bombay Tenancy Act) the Mamlatdar is authorised to decide the question whether a person is a tenant or a protected tenant, provided it is a decision to be given for the purposes of the Act. If in proceedings under sub-section (2) of Section 29 a contention is sought to be raised that the relation of landlord and tenant does or does not subsist between the parties, it would be for the Mamlatdar to decide the question whether a person alleged or claiming to be a tenant or a protected tenant is or is not such a tenant. Section 70 of the Act does not, however, profess to confer exclusive jurisdiction upon the Mamlatdar to decide questions set out in Clauses (a) to (o) of that section, whatever the nature of the proceedings; it merely imposes duties and sets out the functions of the Mamlatdar to be performed for the purposes of the Act. It would, therefore, appear that if in a matter filed in a Civil Court a question did .arise which if it has arisen in proceedings instituted under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, it would be the duty and the function of the Mamlatdar to decide, the jurisdiction of the Civil Courts to decide or deal with that question cannot be regarded as barred. There does not appear any provision in the Bombay Tenancy and Agricultural Lands Act, 1948, which lays down that a Civil Court is not entitled to try a civil proceeding which involves the determination of any question falling within Section 70 Clauses (a) to (o), which if it had arisen in proceedings under the Act which have been settled, decided or dealt with by the Mamlatdar.'

The reference in question came up before a Division Bench consisting of Gajendragadkar, J., (as he then was) and Vyas, J. The judgment of the Bench was delivered by Gajendragadkar, J. His Lordship did not agree with Shah, J.'s interpretation of the words 'for the purposes of this Act' as found in Section 70 of the Bombay Tenancy Act. According to him:

'The purpose of the Act in the context is deciding the claim of the parties as to possession of an agricultural land. It may be, the landlord claims to recover possession of the agricultural land from his tenant or the tenant who is dispossessed claims to be restored to possession of the agricultural land. Whenever any such dispute arises between the parties, the object of the party seeking relief is to take possession of the agricultural land; and that undoubtedly is one of the purposes of the Tenancy Act. Indeed Section 29 makes it clear that possession of the agricultural land can be awarded only in execution of an order passed by the Mamlatdar and not otherwise. Therefore, in our opinion, even if a plea is raised by a defendant in a suit like the present that he is a tenant or a protected tenant, that plea is ultimately referable to the provisions of the Tenancy Act and the purpose of raising the plea is to claim the protection of the Act. If that be so, the decision of his plea must be held to be for the purposes of this Act.'

This case has been followed by the Bombay High Court in its later decisions. With great respect to the learned Judges, who decided Dhondi Tukaram's case, 55 Bom LR 663 : (AIR 1954 Bom 100) I feel unable to agree that all claims for possession of agricultural land come within 'the purposes of the Act.' Section 29 of the Bombay Tenancy Act has a limited purpose and does not embrace all suits for possession of agricultural lands. Under Section 29 of the Bombay Tenancy Act:

'A tenant entitled to possession of any land or dwelling house 'under any of the provisions of this Act may apply' in writing for such possession to the 'Mamlatdar.' (Underlining (here in ' ') is ours). Again under sub-section (2) of the same section:

'No landlord shall obtain possession of any land or dwelling house 'held by a tenant' except under an order of the Mamlatdar.'

(Underlining (here into ' ') is ours).

From this it is seen that before Section 29 (1) can operate, a tenant who is entitled to possession under any of the provisions of the Act, must apply to the Mamlatdar. Section 29 (2) prohibits a landlord from taking possession of any land' or dwelling house except under an order of the Mamlatdar, when possession is asked from a tenant as defined in the Act. But, this controversy has now become academic. As a direct result of the decision in Dhondi Tukaram's case, 55 Bom LR 663 : (AIR 1954 Bom 100) the Bombay Legislature inserted into the 'Act' by means of an amendment, Section 85-A. From the language employed in Section 85-A as well as from the circumstances under which that section was introduced into the 'Act' we must hold, that the Legislature has now declared that any issue which comes within the scope of Section 70, if arises in a suit in a Civil Court, should be referred to the Mamlatdar for his decision. It may be noted that a Civil Court still is not incompetent to entertain a suit wherein such issues arise. Only those issues must be referred to the Mamlatdar. But, neither Section 85-A, nor the decisions in Trimbak Sopana Girme's case, : AIR1953Bom241 and that in Dhondi Tukaram's case, 55 Bom LR 663 : (AIR 1954 Bom 100) bear on the point in controversy. On the other hand, the decisions in Special Appln. No. 3059/1956 (Bom) and Special Civil Appln. No. 278 of 1957 (Bom), noticed above directly deal with the question under examination. They have held that the Mamlatdar cannot give any declaratory relief.

20. Before proceeding to consider the later decisions of the Bombay High Court dealing with the question referred to us, it is useful to repeat that a declaratory relief is not one which a party is entitled to as of right. It is a discretionary relief. Even the jurisdiction of the Civil Court to grant that relief is circumscribed by the conditions found in Section 42 of the Specific Relief Act. In the absence of express conferment of jurisdiction, unless it is possible to conclude, that the conferment of such a jurisdiction can be gathered as a necessary inference from the scheme of the 'Act' or the provisions contained therein, I should refuse to hold that the Mamlatdar had been conferred with an all pervasive jurisdiction in respect of matters mentioned in Section 70.

21. The very question that is referred to us came up again for consideration before a Bench of the Bombay High Court in Mela Kabhai v. Motibhai Kahandas Patel, 60 Bom LR 1071. The Bench consisted of Chainani, J., (as he then was) and Tarkunde, J. They held that the Mamlatdar is competent to grant such a declaration. The reason which influenced the learned Judges to arrive at the conclusion that under the 'Act' the Mamlatdar is competent to entertain and decide an application for a declaration that the defendant is or is not a tenant, appears to be these: under Section 74 (1) (a) of the Bombay Tenancy Act, any order passed under Section 4 of the 'Act' is appealable; Section 4 mentions as to who all have to be considered as tenants; Section 74 speaks of an appeal against the order passed by the Mamlatdar under Section 4; therefore, the Legislature must be held to have conferred on the Mamlatdar powers to declare that a party before him is a tenant or not a tenant. Section 4 merely declares the law. Under that section the Mamlatdar is not required to decide any question. We have earlier considered the possible reason for the inclusion of Clause (a) to Section 74 (1). I have also noticed the ambit of Section 4. With great respect to the learned Judges who decided Mela Babhai's case, 60 Bom LR 1071, I feel that the provision in Section 74 (1) (a) is too slender a circumstance to infer that the Legislature has conferred powers on the Mamlatdar to grant a declaratory relief. The decision in Mela Babhai's case, 60 Bom LR 1071 goes counter to the decisions of the same High Court in Special Application No 3059 of 1956 (Bom) and Special Civil Application No. 278 of 1957 (Bom).

22. Now I come to the Full Bench decision of the Bombay High Court in Nivrutti Laxman v. Shivdayal Laxminarayan, 61 Bom LR 957 : (AIR 1960 Bom 56) (FB) the Bench consisting of Chainani, C. J., Mudholkar and Patel. JJ. The judgment of the Bench was delivered by the learned Chief Justice, who was a party to the decision in Mela Kabhai's case, 60 Bom LR 1071. The Full Bench accepted the decision in Mela Kabhai's case, 60 Bom LR 1071 as laying down the law correctly. In support of its conclusion it reiterated the reasons mentioned in Mela Kabhai's case, 60 Bom LR 1071. It also opined that the words 'for the purposes of this Act' in Section 70 of the 'Act' mean for the purposes of deciding any question relating to a matter, which is regulated or governed by the provisions of the 'Act'. For the reasons already mentioned, I am unable to accept, that the Full Bench decision lays down the law correctly.

23. I have not thought it necessary to refer to the various decisions of this Court, bearing on the question under consideration, as the same have been collected together and examined by a Bench of this Court (of which I was a member) in Mudugere Rangiah v. M. Rangaiah, 1959-37 Mys LJ 626. In that case the plaintiff instituted a suit in the Civil Court seeking a declaration that he was the kadim tenant in the suit land. He also prayed for a permanent injunction restraining the defendant from interfering with his possession. Both the plaintiff and the defendant therein claimed to be tenants in the suit property under the same landlord. The Court held that the relief claimed in the suit did not arise under any of the provisions of the Mysore Tenancy Act (which Act is modelled on the basis of the 'Act', and in some respects a true copy of it) and the Civil Court had jurisdiction to decide the points in dispute including the question of tenancy. Section 32 of that Act is substantially a reproduction of Section 70 of the 'Act'. Interpreting that provision, this Court came to the conclusion that the jurisdiction of the Mamlatdar is limited to cases that arise by or under the 'Act' and the decisions that he is required to give under Section 32 should be 'for the purposes of the Act'. This Court further held that for finding out 'the purposes of the Act' one has to travel outside the provisions contained in Section 32. In the course of that judgment, various decisions of this Court as well as that of the Bombay High Court were examined. But in the Mysore Tenancy Act there are no provisions similar to Section 74 (1) (a) or 85-A of the 'Act'. Hence that decision touches only the fringe of the question referred to us.

24. As observed in Sudhir Kumar v. Bibhuti Bhusan, : AIR1956Cal668 :

'In all proceedings under ...... Special Acts, the Special Tribunal has jurisdiction to decide questions which are necessary for the purpose of giving or refusing relief under the particular statute. The Tikka Tenancy Controller ... has the power and authority under the law to order eviction of thikka tenants. For that purpose, it may be necessary for him to consider defences or objections, founded on a certain claim of status, or pleas of absence of relationship of landlord and tenant or denial of the landlord's title to the property. He is ......... entitled ......... to consider those questions so far as they are necessary for the performance of his duties under the statutes which include passing of orders for ejectment.' In the absence of specific provisions to the contrary in the Statute creating a Special Tribunal, the above decision, if I may say so with respect, correctly defines the limits of the jurisdiction of a Special Tribunal.

25. In the course of his argument, Sri Datar laid emphasis on the principle enunciated in Bhaishankar Nanabhai v. Municipal Corporation of Bombay, ILR 31 Bom 604, that where a special tribunal out of the ordinary course is appointed by an Act, to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. This principle has nothing to do with the question that we are considering. The 'Act' did not create wholly new rights. It only modified the rights previously existing.

26. Sri Datar also placed reliance on the decision in A. R. Sarin v. B. C. Patil, : AIR1951Bom423 . In that case, Chagla, C. J., who delivered the judgment of the Bench held:

'The scheme of the Act is to set up a special tribunal, confer a special jurisdiction upon that tribunal and to oust the jurisdiction of ordinary Civil Courts. Therefore the jurisdiction conferred upon the Special Tribunal must be strictly construed. The jurisdiction of a special tribunal cannot be inferred by implication. Jurisdiction must be expressly given, and we must find from the language of the statute itself that there is express ouster of the jurisdiction of the Civil Courts and an express conferment of such jurisdiction upon the special tribunal set up under the Act.'

(as summarised in the head note.)

This decision, with which I respectfully agree, is opposed to the contentions advanced by Sri Datar. We do not think that Sri Datar is right in picking up few stray sentences from that judgment to support his case. Those sentences must be read in the context, in which they were made.

27. The other facet of the question referred to us is: Whether the Mamlatdar can give a declaration that a party before him is not a tenant. In other words, whether he can give a declaration in the negative form? As held in Mudugere Rangiah's case, (1959) 37 Mys LJ 626 if he can give a declaration in the positive form, he could certainly give a declaration in the negative form as well, they being two facets of the same question.

28. For the reasons mentioned above, I am of the opinion that the Mamlatdar is not competent to grant any declaratory relief. Hence I answer the question referred to us in the negative. I hold that under the provisions of the 'Act', the Mamlatdar cannot entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act.

29. The case will now go back to the concerned Bench with the opinion of the Full Bench.

Kalagate, J.

30. I have had the privilege of perusing, with the care it deserves, the order prepared by my learned brother Hegde, J., but, to my great regret, I find myself unable to agree with it. I therefore, propose to answer separately the question referred to the opinion of the Full Bench giving my own reasons for it.

31. The question referred to the Full Bench is:

'Whether under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, the Mamlatdar can entertain and decide an application by a landlord for a declaration that his opponent who dims to be his tenant is not a tenant under the said Act?'

32. The order of reference by which the question has been referred to the Full Bench is:

'These two civil petitions arise out of two applications filed by the petitioner before us to the Mamlatdar of Jamkhandi, for a declaration that opponents 4 to 8 in Civil Petition No. 269 of 1956 and opponents 4 to 6 in Civil Petition No. 270 of 1956 were not the tenants of the suit lands. Those applications were presented under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

A question of considerable importance which arises for decision in these civil petitions is whether an application by a landlord for a declaration that his opponent who claims to be his tenant is not his tenant is maintainable under the provisions of the aforesaid Act.

The answer to this question depends upon the interpretation of Section 70 of the aforesaid Act and it is seen that conflicting views have been expressed by this Court on that matter.

We, therefore, refer the following question to a Full Bench of this Court for its opinion thereon -- X X X

(The question referred to has been quoted in para 31 above)

Thus the question referred to is one which is plain in its meaning and import and, that is, whether the Mamlatdar can decide and declare on the application made by a landlord that his opponent is not his tenant; in other words, whether the Mamlatdar could give, what may be called a negative declaration. This reference was occasioned, as stated in the order of reference, on account of conflicting views expressed by the Court on this question. The conflict on this question is only in the decisions of the High Court of Bombay.

33. 'The Bombay Tenancy and Agricultural Lands Act, 1948' shall hereafter be referred to as the Act.

34. Section 70 of the Act provides that 'For the purposes of this Act', the following shall be the duties and functions to be performed by the mamlatdar'. They are as enumerated in Clauses (a) to (o) of the said section.

35. The Legislature thus by that section conferred on the Mamlatdar certain duties and functions to be performed by him for the purposes of the Act.

36. By Section 85 of the said Act, the jurisdiction of the Civil Court is barred in regard to matters to be decided by the Mamlatdar. That section provides:

'(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.

(2) No order of the Mamlatdar, the Tribunal, the Collector or the Bombay Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.

Explanation: -- For the purposes of this section, a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.'

Thus it could be seen that the jurisdiction of the Civil Court has been ousted to settle, decide or deal with any question which a special Tribunal created under the Act has been required to perform by or under the said Act.

37. At his stage, I would like to state, in brief, the law relating to the jurisdiction of the Civil Court and the special Tribunal.

38. Section 9 of the Code of Civil Procedure provides that 'the Courts shall (subject to the pro visions herein contained) have jurisdiction to try all , suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred'. This principle has been enunciated by the Privy Council in wherein their Lordships have stated:

'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied.'

39. Thus a Civil Court has got jurisdiction to try all suits of a civil nature. But if the Legislature decides that certain types of civil proceedings should be excluded from its cognizance, then the Civil Court will have no jurisdiction to try such proceedings the cognizance of which has been en trusted to a special Tribunal. In that event, it is the Tribunal which gets the exclusive jurisdiction to decide matters entrusted to it. Therefore, it is for the Legislature to consider what powers it will give by the Act to the Tribunal or a body which it intends to create. In this connection, I must refer to the observations of Lord Esher, M. R. in R. v. Commrs. for Special Purposes of Income Tax, (1888) 21 QBD 313 at p. 319 which runs thus:

'When an inferior Court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exist and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be l' questioned and it will be held that they have' acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal, from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'

40. These observations have been considered by their Lordships of the Supreme Court in Chaube Jagdish Prasad v. Ganga Prasad, : AIR1959SC492 . Their Lordships stated:

'These observations which relate to inferior Courts or tribunals with limited jurisdiction show that there are two classes of cases dealing with the power of such a tribunal (1) where the Legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exists or is shown to exist.' Thus when the Legislature creates a special tribunal, it may confer on it a jurisdiction to determine certain matters including the determination of the preliminary state of facts on which its jurisdiction depends, or it may confer power on the tribunal to proceed to decide a case where a certain state of facts exists or is shown to exist.

41. In this case, the Legislature established the Mamlatdar a Special Tribunal of exclusive jurisdiction to perform the duties and functions mentioned in Section 70 of the Act for the purposes of the Act.

42. Very recently, the Supreme Court had the occasion to consider the question regarding the jurisdiction of the Civil Court and the special Tribunal in Civil Appeal No. 92 of 1959 : : [1962]3SCR673 decided on 20th September, 1961. The question that arose for consideration in that appeal was, what is the scope and effect of Section 7 (1) of the Orissa Tenants Protection Act, 1948. Section 7 deals with the powers of the Collector. Sub-section (1) of Section 7 provides:

'(1) Any dispute between the tenant and the landlord as regards --

(a) tenant's possession of the land on the 1st day of September, 1947, and his right to the benefits under this Act; or

(b) misuse of the land by the tenant; or

(c) failure of the tenant to cultivate the land properly; or

(d) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable; or

(e) the quantity of the produce payable to the landlord as rent; or

(f) liability of the tenant to eviction on the ground that he is holding land under a raiyat the total extent of land under whose possession on the 30th November, 1947, did not exceed 33 acres;''

Relying on these provisions, it was contended that the suit filed in the Civil Court was outside its jurisdiction. While examining this contention, their Lordships stated two principles, one as enunciated by their Lordships of the Privy Council in to which I have already made a reference, and the other is:

'It is true that having regard to the beneficient object which the Legislature had in view in passing the Act its material provisions should be liberally construed. The Legislature intends that the disputes contemplated by the said material provisions should be tried not by ordinary Civil Courts but by tribunals specially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberal construction.' After stating these two principles, their Lordships proceeded to examine the contention and after a consideration of the provisions contained in subsection (1) of Section 7 of the Act held that 'it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section'. Thus the contention that the suit was outside the. jurisdiction of the Civil Court was rejected. Their Lordships, during the course of their judgment, while reiterating the principles stated in the case of Mask and Co. have further stated the principle which should guide the interpretation of a beneficient legislation.

43. But Mr. Albal, who appears for the respondent, contends that the Mamlatdar is not a special Tribunal created under the Act. According to him, the Mamlatdar has got to perform certain duties and functions mentioned in that section, and the power which he gets or derives to perform those duties and functions is referable to the various Sections in the Act. In my view, this argument is not sound.

44. As already stated, Section 70 enumerates the duties and functions to be performed by the Mamlatdar under Clauses (a) to (o) thereof. It could be seen therefrom that while Sections are mentioned against certain clauses, no Sections are mentioned against some other 'clauses, e. g., clauses (a), (b), (m), (n), (na) and (o). Clause (a) states:

'to decide whether a person is an agriculturist;'

No section has been mentioned against that clause. So also Clause (b). Similarly under Clause (o), it is the duty and function of the Mamlatdar 'to decide such matters as may be referred to him by or under this Act.' Against the rest of the clauses, Sections have been mentioned, e. g., Clause (d) states:

'to decide dispute regarding class of land under Section 9-A;'

45. What Mr. Albal, therefore, contends is, taking for instance Clause (c), that it is the duty of the Mamlatdar to determine the rates of rent under Section 9. According to him, the Mamlatdar gets power under Section 9 and not under Section 70 (c). But it should be seen that Section 9 deals with the rate of rent payable by tenant to his landlord, and the authority who is to fix the rent has been mentioned in Section 9. But that does not mean that under Section 70 of the Act, the Mamlatdar has got no power to determine the rate of rent under Clause (c).

46. The word 'Mamlatdar' has been defined in Section 2 (1) of the Act, which states:

' 'Mamlatdar' includes a Mahalkari and any other officer whom the State Government may appoint to perform the duties of a Mamlatdar under 'this Act;'

If, according to Mr. Albal, the Mamlatdar is not appointed a special Tribunal under the Act to perform the duties and functions, then it is difficult to understand how the Mamlatdar can decide 'such other matters as may be referred to him by or under this Act' as provided under Clause (o) of Section 70. Sometimes, even though the previous Sections state that certain things are to be done and provide that it is the duty of the Mamlatdar to do them, Section 70 repeats, while enumerating the duties and functions of the Mamlatdar, the Sections under which it would be his duty to do those particular things.

47. Section 74 of the Act provides for an appeal against the orders of the Mamlatdar and the Tribunal to the Collector. Section 4 of the Act provides that tenants evicted after 1st of April 1937 shall be deemed to be protected tenants. Under Section 70 (b) of the Act, it is one of the duties and functions of the Mamlatdar to decide whether a person is a tenant or a protected tenant and any decision by the Mamlatdar under Section 70 (b) is made appealable under Section 74 (i) (a). It is, therefore, obvious that the Mamlatdar is a special Tribunal created under the Act, whose orders are made appealable. It is to be seen that against Clause (b) of Section 70, no section has been mentioned but whether a person is or is not a protected tenant could be decided by the Mamlatdar only when a dispute arises under Section 4 of the Act. Therefore though Section 4 has not been mentioned against Clause (b) of Section 70, yet the order passed under that clause is made appealable under Section 74 (1) (a) of the Act. Similarly, orders made by the Mamlatdar under the other provisions are also made appealable under Section 74 of the Act. Though it is true that Section 74 makes no reference to Section 70, yet it refers to Sections mentioned against the various clauses in Section 70. The argument that Section 70 is not mentioned in Section 74 and, therefore, the orders passed by the Mamlatdar while performing the duties and functions imposed by Section 70 are not appealable, cannot be sustained.

48. Another thing that has to be noticed is that at no time during the last two decades has it ever been contended in any case before any Court that the Mamlatdar is not a special Tribunal created under the Act. At any rate, no decision has been brought to my notice to that effect. But that does not preclude Mr. Albal from raising such a contention though I may point out that it has been held in 55 Bom LR 663 : (AIR 1954 Bom 100) that Section 70 of the Act makes the Mamlatdar a forum of exclusive jurisdiction.

49. Therefore, in my opinion, reading Sections 85 and 70 of the Act together, it is clear that the Mamlatdar is a special Tribunal created under the Act to perform the duties and functions mentioned therein 'for the purposes of this Act'. The purposes of the Act may be gathered from the preamble to the Act. Among others, they are to regulate the relations of landlord and his tenant so that the cultivation of the land may not suffer, to improve the economic and social conditions of the peasants, to ensure the full use of the land for agriculture and to impose restriction on the transfer of agricultural lands and dwelling houses belonging to agriculturists and under Section 70 the Mamlatdar is a special Tribunal, created under the Act to carry out these purposes.

50. The words 'for the purposes of the Act' do not suggest that the jurisdiction of the Tribunal is made dependent upon the determination of the 'purpose' of the Act. What it states is that the Mamlatdar is to perform the duties and functions for the purposes of the Act. The purpose must be the end desired by the Act. The purpose is not a jurisdictional fact on which the jurisdiction of the Tribunal is made dependent. The Legislature has conferred jurisdiction on the Tribunal to perform the duties and functions when a certain state of facts can be shown to exist. Therefore the words 'for the purposes of the Act' are not the sine qua non for the exercise of the jurisdiction by the Mamlatdar.

51. Now, one of the duties and functions to be performed by the Mamlatdar under Section 70(b) is:

'to decide whether a person is a tenant or a protected tenant.'

The word 'tenant' has been defined in the Act. Section 4 of the Act defines who can be deemed to be a tenant. This section is material for the consideration of the question referred to the Full Bench and will be referred to in its appropriate place.

52. The words 'for the purposes of this Act' appearing in Section 70 of the Act have been considered in some of the decisions of the High Court of Bombay. This Court also had the occasion to consider similar words appearing in Section 32 of the Mysore Tenancy Act, 1952. That section appears in Chapter III of the said Act which deals with the procedure and jurisdiction of Tahsildar and Appeals.

53. Section 32 deals with the duties of the Tahsildar. It states:

'For the purposes of this Act, the following shall be the duties and functions to be performed by the Tahsildar:-'

The duties have been mentioned in Clauses (a) to (1) of the said section. It may be seen that the provisions of Section 32 of the Mysore Tenancy Act are to some extent in pari materia with the provisions contained in Section 70 of the Act.

54. The scope and effect of the term 'for the purposes of this Act' appearing in Section 32 of the Mysore Tenancy Act came for consideration in 1959-37 Mys LJ 626. In that case, a dispute arose between the plaintiff and the defendant who claimed to be the tenant of the suit property under the same 'landlord. The plaintiff sued for a declaration that he is the kadim tenant of the suit land and claimed a permanent injunction restraining the defendant from interfering with his property. The defence of the defendant was that he was a tenant and, therefore, the Civil Court had no jurisdiction to decide the suit.

55. On these facts, their Lordships came to the conclusion that the case did not arise under any of the provisions of the Mysore Tenancy Act and the Civil Court had therefore jurisdiction to decide the points in dispute including the question of the tenancy. It was held that the rival claims about the same tenancy was not a matter to be decided by the Amildar under Section 32 of the Act. It was further held that the jurisdiction of the Amildar was limited to cases that arose by or under the Act and the decisions that he is required to give under Section 32 should be 'for the purposes of the Act.' Since, according to their Lordships, the dispute raised before the Civil Court was not 'for the purposes of the Act', it was held that the jurisdiction of the Civil Court was not barred. The decisions of the High Court of Bombay in which the words 'for the purposes of the Act' appearing in Section 70 of the Act were interpreted, were referred to. Their Lordships noted that the Mysore Act states two purposes:

(1) to regulate the relations between landlords and tenants; and (2) to regulate the alienation of agricultural land. But it is stated that in reality there is only one purpose and, that is to regulate the relations between the landlords and tenants. Section 32 does not mention the purposes of the Act but intends to implement them. Their Lordships also noted the difference between the provisions of the Mysore Act and the Bombay Act and stated:

'Hence to find out the 'purposes of the Act' it may not be safe to wholly rely on the provisions of the Bombay Tenancy Act and the decisions rendered thereon.'

The following decisions of the High Court of Bombay were referred to:

(1) 55 Bom LR 663 : (AIR 1954 Bom 100);

(2) : AIR1953Bom241 ; (3) 60 Bom LR 1071; and (4) 61 Bom LR 957 : (AIR 1960 Bom 56) (FB).

Besides those, they also made a reference to an unreported decision of the said High Court in Special Appln. No. 3059/56 and after consideration of all the cases, their Lordships came to the conclusion that 'the jurisdiction of the Amildar is limited to cases that arise by or under the Act and the decisions that he is required to give under Section 32 should be 'for the purposes of the Act'. In other words, the Tahsildar is to exercise jurisdiction only 'when the proceedings have been started under the Act' (the underlining (here into ' ') above is mine). Otherwise, the Civil Court's jurisdiction is not ousted or barred to consider questions involved in the suit though they may be raised in an appropriate proceeding before the Tahsildar. In short, the effect of the decision is that the proceedings must be first started for any of the purposes mentioned in the Act and when any question is raised which requires to be determined by the Tribunal, it is only then that the Tribunal gets jurisdiction to decide that matter and not otherwise. Thus, according to their Lordships, the condition precedent to the exercise of the jurisdiction by the Tribunal to determine any matter is the existence or pendency of a proceeding started under the Act itself. The view taken by the High Court of Bombay viz., that the Tribunal gets jurisdiction even in matters which may ultimately be referable to the provisions of the Tenancy Act, was not accepted.

56. Since this Court had concerned itself with the interpretation of the words 'for the purposes of the Act' appearing in section 32 of the Mysore Tenancy Act, 1952, the material provisions of section 85-A of the Bombay Tenancy and Agricultural Lands Act were probably not brought to their Lordships' notice. The absence of similar provisions in the Mysore Tenancy Act of 1952 may perhaps explain the decision. Section 85-A provides :

'(i) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issue to such competent, authority for determination.

2. On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of the Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation. -- For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.'

Thus it is clear that the provisions of section 85-A of the Act would make a material difference while interpreting the words 'for the purposes of the Act' appearing in section 70 of the Bombay Tenancy and Agricultural Lands Act, and similar words appearing in section 32 of the Mysore Tenancy Act. Therefore the decision in 1959-37 Mys LJ 626 may not be helpful while interpreting the words 'for the purposes of the Act' appearing in section 70 of the Bombay Tenancy and Agricultural Lands Act.

57. It appears to me that there is no reason or justification to hold that the Mamlatdar gets jurisdiction to decide a matter which is required to be decided under the Act only when the proceedings have been started under the Act. Section 70 states that the Mamlatdar is to perform the duties and functions for the purposes of the Act. . It is not stated in the Act that the purpose must precede the performance of the duties and functions. This Court has considered what is the meaning to. be given to the word 'purpose' and stated that 'according to the Dictionary meaning 'purpose' means the idea or aim kept before the mind as the end of effort. In other words, the end desired.' Thus the purpose may ultimately be referable to the provisions of the Act. It is true that the Mamlatdar has got to decide only for the purposes of the Act. But then the purpose may precede or may ultimately be referable to the provisions of the Act. In either event, the jurisdiction which the Mamlatdar gets is to decide for the purpose of the Act. The interpretation that the purpose must precede the act requires the addition of the words 'in the proceedings started under the Act'' to the section. When it is possible to interpret the words 'for the purposes of the Act' may precede or may ultimately be referable to the provisions of the Act, there is no reason why they should be so construed to mean that the purposes-must precede the performance of the duties and functions.

58. The view that when a plea is raised in a suit that the defendant is a tenant or a protected tenant or claiming any benefit under the provisions of the Tenancy Act, the purpose in raising such a plea may ultimately be referable to claim the protection of the Act, has been supported at least by three decisions of the High Court of Bombay viz., two Division Bench decisions and one Full Bench decision.

59. The first decision is 55 Bom LR 663 : (AIR 1954 Bom 100). The judgment of the Division Bench was delivered by Gajendragadkar, J., and while considering the meaning of the words 'for the purposes of the Act' appearing in section 70 of the Act, this is what his Lordship observed :

'The purpose of the Act in the context is deciding the claim of the parties as to possession of an agricultural land. It may be, the landlord claims to recover possession of the agricultural land from his tenant or the tenant who is dispossessed claims to be restored to possession of the agricultural land. Whenever any such dispute arises between the parties, the object of the party seeking relief is to take possession of the agricultural land; and that undoubtedly is one of the purposes of the Tenancy Act. Indeed, section 29 makes it clear that possession of the agricultural land can he awarded only in execution of an order passed by the Mamlatdar and not otherwise: Therefore, in our opinion, even if a plea is raised by a defendant in a suit like the present that he is a tenant or a protected tenant, that plea is ultimately referable to the provisions of the Tenancy Act and the purpose of raising the plea is to claim-the protection of the Act. If that be so, the decision of this plea must be held to be for the purposes of this Act.'

This decision of the Division Bench came up for consideration before another Division Bench in 60 Bom LR 1071 and the Division Bench consisting of Mr. Justice Chainani (as he then was) and Mr. Justice Tarkunde approved the decision delivered? by Mr. Justice Gajendragadkar.

60. The question which has been referred to the Full Bench in these Petitions was also referred to the decision of the Full Bench of the High Court of Bombay in 61 Bom LR 957 : (AIR 1960 Bom 56) (FB) and while interpreting the words 'for the purposes of the Act' their Lordships of the Full Bench approved the view taken in the two earlier Division Bench decisions. One of the reasons given by their Lordships of the Full Bench is that in regard to matter required to be decided by the Mamlatdar if it is raised in a case started in a Civil Court and if ultimately that matter is referred to the decision of the Mamlatdar, the Mamlatdar gets jurisdiction to decide that question. In such circumstances, their Lordships stated:

'If the Mamlatdar has jurisdiction to decide the question, after it arises in a Civil Court, he will also have jurisdiction to decide it before it arises in the Civil Court. A party may frequently find it more convenient to approach the Mamlatdar before he files a Civil suit. The Act also contains no provision under which the exercise of jurisdiction by the Mamlatdar is made dependent upon the issue arising in a civil suit, or in some other proceeding under the Act.' In my view, the Mamlatdar, who is a special Tribunal, has been given under section 70 of the Act exclusive jurisdiction for performing the duties and functions mentioned in the Act 'for the purposes of the Act'; the words 'for the purposes of the Act' need not be interpreted to mean that the purpose must precede the performance of the duties and functions mentioned in the section. The purpose may ultimately be referable to the provisions of the Tenancy Act.

61. Having dealt with the jurisdiction of the Mamlatdar to perform the duties and functions mentioned in the section 'for the purposes of the Act', and having considered what is the meaning to be given to the words 'for the purposes of the Act', I shall now proceed to consider whether the Mamlatdar can entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act.

62. On this question, there is a difference of opinion in some of the decisions of the High Court of Bombay. A Division Bench consisting of Dixit and Shelat, JJ., considered this question in Special Civil Appln. No. 278 of 1957 (Bom) and their Lordships expressed the view that a negative declaration sought for by the landlord cannot be given under the Act, whereas in the decision 60 Bom LR 1071, a Division Bench consisting of Mr. Justice Chainani (as he then was) and Mr. Justice Tarkunde took a contrary view holding that the Mamlatdar may pass declaratory orders about the tenancy rights. In view of this conflict of decisions, the matter was referred to a Full Bench, and the Full Bench in 61 Bom LR 957 : (AIR 1960 Bom 56) (FB) overruled the decision in the unreported case delivered by Dixit and Shelat, JJ., Special Civil Appln. No. 278 of 1957 (Bom) and upheld the decision in 60 Bom LR 1071 and the question which was referred to the Full Bench was answered in the affirmative holding that under the Bombay Tenancy and Agricultural Lands Act, 1948, the Mamlatdar can entertain and decide an application filed by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the Act.

63. During the course of the argument, a reference was made to the decision in Special Civil Appln. No. 3059/56 decided by Gokhale and Shah, JJ. In that case, the dispute between the parties was that each of them claimed to be owner of tenancy rights over the land in dispute. Their Lordships stated that by Section 70 of the Act, one of the duties conferred on the Mamlatdar is to decide whether a person is a tenant or a protected tenant; therefore that contemplates a decision by the Mamlatdar of a dispute between a landlord and a tenant and not between two persons who claim to be the owners of certain tenancy rights. In that view of the matter, their Lordships held, such a dispute is outside the jurisdiction of the tenancy Court.

64. Mr. H. B. Datar who appears for the petitioner has relied upon the decision of the Full Bench and contended that the Mamlatdar is competent to entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the Act. On the contrary, Mr. Albal who appears for the respondent, has contended that the view taken by the Division Bench in Special Civil Appln. No. 278 of 1957 (Bom) is the correct view to take.

65. I have, therefore, to examine the correctness or otherwise of the rival contentions raised before us with reference to the relevant provisions of the Act as also the decided cases. I may state here that this point was incidentally considered by the Division Bench of this Court in 1959-37 Mys LJ 626 and their Lordships stated :

'It is not necessary for us to consider in this case the scope of Section 4 read with Section 74 of the Bombay Tenancy Act as there are no provisions similar to Section 74 of the Bombay Tenancy Act in the Act.'

It is also stated that under Section 32 (b) the Amildar is required to decide 'whether a person is a tenant' and observed :

'Some controversy has arisen as to whether he (Mamlatdar) could also decide 'whether a person is not a tenant'. If he has to decide 'whether a person is a tenant', it stands to reason that he must also have the power to decide that he is not a tenant, they being two facets of the same question.'

66. Now the first decision of the High Court of Bombay to which I would like to make a reference is : AIR1953Bom241 . In that case, the plaintiff filed a suit against the defendant to recover possession of certain property in the Court of the Civil Judge alleging that the defendant was a trespasser. The defendant inter alia contended that he was a protected tenant and not a trespasser and that under the Bombay Tenancy and Agricultural Lands Act, 1948, the Civil Court had no jurisdiction to try the suit. In that case, the scope and effect of Section 70 (b) of the Act came for consideration, and Chagla C. J. observed that when the Legislature has left it to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not, it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or a protected tenant and he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant. The learned Chief Justice considered the scope -and effect of Section 70 (b) read with Section 85 of the Act and held 'looking to the language used by the Legislature in Section 70 (b) of the Tenancy Act and looking to the scheme of the Act, it seems to me clear that all questions with regard to the status of a party, when the party claims the status of a protected tenant, are left to be determined by the Revenue Court, and the jurisdiction of the civil Court is ousted.' This decision subsequently came to be affirmed by a Division Bench in 55 Bom LR 663 : (AIR 1954 Bom 100) and their Lordships held that Section 70 of the Act makes the Mamlatdar the forum of exclusive jurisdiction for the determination of the questions mentioned in that section. Therefore in a suit filed against the defendant for possession of agricultural lands on the footing that he is a trespasser, if the defendant raises a plea that he is a tenant or a protected tenant, the civil Court would have no jurisdiction to deal with that plea.

67. To the same effect is the judgment delivered by Mr. Justice Shah in : AIR1954Bom107 . His Lordship held :

'The decision of the question whether a person is or is not a tenant within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948, involves the determination of three questions :

(i) whether he is an agriculturist;

(ii) whether he holds land on lease, and

(iii) whether the land is agricultural land.

The jurisdiction to decide all the three questions in determining the status of a person as a tenant must be deemed exclusively to be vested in the Mamlatdar under the Act.' Thus it could be seen that whenever a question is raised in a civil proceeding which is ultimately in the exclusive jurisdiction of the Mamlatdar -- a special Tribunal under the Act -- the Courts have held that it is the special Tribunal that has the jurisdiction to deal with the matter and, to that extent, the jurisdiction of the civil Court is ousted. It is also stated that it is for that Tribunal to consider whether the particular person is or is not a tenant.

68. But the question whether what is called a negative declaration could or could not be given by the Mamlatdar came up for consideration, for the first time, before a Division Bench consisting of Dixit and Shelat JJ. in Special Civil Appln. No. 278 of 1957 (Bom). That was a case where the plaintiff as a tenant of the land filed a suit against the defendant for a declaration that he is not his sub-tenant. In other words the dispute was between a tenant and a sub-tenant; the plaintiff must be deemed to be the lessor and the defendant a lessee i.e. in effect a dispute between a landlord and a tenant.

69. The matter went to the High Court on a decision given by the Tribunal which held that an application for a negative declaration that the opponent was (sic) a sub-tenant cannot be entertained under the provisions of the Tenancy Act. The correctness of that decision was challenged before the High Court. It was contended before the High Court that the Tribunal's decision was wrong when it held that a negative declaration could not be granted. It was contended on behalf of the petitioner that the application for such a declaration fell within Section 70 (b) of the Act and the Tribunal ought to have held that it had jurisdiction to decide whether the defendant was or was not a tenant under Section 70 (b) of the Act. This contention was negatived by their Lordships. The reason given by their Lordships was that the petitioner was in possession of the suit lands and therefore he could not have made an application under Section 29 of the Act for possession and claimed the relief. At the same time, a declaration of the type asked for fell within the scope of Section 42 of the Specific Relief Act and since no application could be made by the petitioner under Section 29 of the Act, it was not competent for the petitioner-landlord to ask for a declaration that his opponent was not a tenant. In other words, according to their Lordships, it is only when an application is made under Section 29 and the question is raised and a declaration is sought that such a declaration could be given and in no other circumstances could such a declaration be given.

70. It is, however, stated in the last but one paragraph that the petitioner must seek his appropriate remedy in a civil Court and while seeking such a remedy if an issue arises as to whether the second opponent is or is not a sub-tenant, that issue may be one for the Mamlatdar to decide upon a reference by the civil Court. But in the proceeding before their Lordships in which the applicant was claiming a negative declaration that the second opponent was not a sub-tenant, their Lordships held that they could not accede to his application.

71. Thus, according to their Lordships, if an issue is raised before a civil Court and the civil Court refers the matter to the Mamlatdar, the Mamlatdar can grant such a declaration, but in an application made to him such a declaration cannot be granted. This decision of their Lordships came up for consideration before another Division Bench consisting of Mr. Justice Chainani (as he then was) and Mr. Justice Tarkunde in 60 Bom LR 1071; their Lordships did not approve that decision and pointed out that the learned Judges had overlooked the observations made by another Division Bench in 55 Bom LR 663 : (AIR 1954 Bom 100). Their Lordships agreed with the view taken by the Division Bench in 55 Bom LR 663 : (AIR 1954 Bom 100) and held that the Mamlatdar was competent to entertain and decide an application for a declaration that a person is or is not a tenant.

72. As I stated earlier, it is as a result of such conflicting views in these two decisions that the matter was referred to a Full Bench and ultimately the Full Bench overruled the decision of the Division Bench consisting of Dixit and Shelat JJ. in Special Civil Appln. No. 278 of 1957 (Bom), upholding the decision in 60 Bom LR 1071 and approving the decision of the Division Bench in 55 Bom LR 663 : (AIR 1954 Bom 100) and held that under the Act the Mamlatdar can entertain and decide an application filed by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act. Thus, so far as the High Court of Bombay is concerned, the question is settled. This Court is, however, free to examine the question and come to its own conclusion.

73. Mr. Albal in support of his contention that the Mamlatdar has got no power to entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant, further relies upon certain provisions contained in the Bombay Tenancy Act of 1939. He contends that under this Act, there was a provision made for such a declaration but that in the Act of 1948, there is no similar provision. Therefore he contends that the Legislature did not intend that such an application should be entertained by the Mamlatdar.

74. Under Section 13 of the Bombay Tenancy Act, 1939, a provision was made for an application by a landlord for a declaration that the person cultivating his land is not a tenant. Now Section 2A appears in Chapter I-A and that Chapter deals with tenants. Sub-section (i) of Section 2A provides :

'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not :

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, unless the owner has within one year of the coming into force of the Bombay Tenancy (Amending) Act, 1946, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant......'

Therefore having thus stipulated in Section 2 A (1) that the landlord must get a declaration, a provision was made under Section 13 for an application to get such a declaration.

75. It could be seen that the landlord was under an obligation to get a declaration under Section 2 A (1) within a year from the coming into force of the Bombay Tenancy (Amendment) Act, 1946. If he fails to do so, then the person referred in Section 2 A (1) shall be deemed to be a tenant automatically. By Section 89 of the Act, of 1948 the Bombay Tenancy Act, 1939, was repealed excepting Sections 3, 3A and 4 as modified in the manner stated in the schedule to the Act. But then Section 4 in the Act of 1948 deals with the person who can be deemed to be a tenant and this Section 4 reproduces Section 2A(1) of the Act of 1939, but omits the conditional term viz. 'unless the owner has within one year of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the person is not a tenant', occurring beneath Clause (b) of that sub-section. Therefore there was no necessity in the Act of 1948 to make a similar provision as contained in Section 13 of the Act of 1939 because the period mentioned in the Act was a year, and that period having expired there was no necessity to provide for making an application for such a declaration. As regards pending matters, a provision was made for their disposal.

76. As I have already stated, Section 74 (1) of the Act deals with appeals against the orders of the Mamlatdar. Under Clause (a) thereof, an order under Section 4 is made appealable; an order under Section 4 could be made only on an application.

77. Section 71 of the Act provides that the proceedings before the Mamlatdar shall be commenced by an application. Though there is no provision in the Act of 1948, similar to that made under Section 13 of the Act of 1939, yet a proceeding under Section 4 could be started only by an application as provided under Section 71, and by virtue of Section 74 (1) (a) an order under Section 4 is made appealable. In the Act of 1939, there wag no provision similar to that contained in Section 71 of the Act of 1948. Therefore it is not correct to state that there is no provision made in the Act of 1948 to get a declaration under Section 4 of the Act. Thus the contention that there is no provision made in the Act for a declaration similar to that mentioned in Section 13 of the Act of 1939 must fail.

78. The next submission made by Mr. Albal on behalf of the respondent is that the only reliefs which could be granted under the Act are those mentioned in Clauses (b) and (c) of Section 71 of the Act. He contends that whenever an enquiry or proceeding is commenced before the Mamlatdar, the application shall contain the particulars mentioned therein; he relies upon the particulars to be mentioned as required by Clauses (b) and (c); Clauses (a) and (d) are not material. Clause (b) stipulates 'a short description and situation of the property of which possession is sought, or the amount of the claim, as the case may be'; Clause (c) deals with 'the circumstances out of which the cause of action arose.'

79. Relying upon these two clauses, Mr. Albal contends that the relief which could be claimed under the Act is either the relief for possession or the relief for the amount claimed and no other claim can be made under the Act. He tried to point out with reference to certain sections of the Act that the relief could either be a relief for possession or a relief for the amount claimed. This submission of Mr. Albal ignores the fact that there are also other provisions in the Act under which a relief other than those mentioned in Clause (b) could be claimed, e. g., Sub-clause (2) of Section 9A states:

'If there is a dispute regarding the class to which any land belongs, either of the parties to the dispute may apply to the Mamlatdar who shall, after making an inquiry, decide the dispute.' Therefore what the Mamlatdar can do under this sub-section is to decide to what class a particular land belongs. There is no question either of possession or any claim for money.

80. Reference may also be made to Sections 84A and 84C of the Act. Moreover, Section 71 is not exhaustive as is clear from Clause (e) which provides that an application under Section 71 may contain such other particulars as may be prescribed.

81. Therefore it is not quite correct to state that the only relief that could be given under the Act is the relief either for possession or the claim for any amount. Hence there is no substance in this contention as well.

82. After a careful consideration of the relevant provisions of the Act and the various decisions referred to during the course of the argument, I have come to the conclusion that the Mamlatdar can entertain such an application and give the declaration sought for.

83. The reasons for my conclusion that such an application could be made and the relief asked for could be granted, are;

1. Section 4 states who are the persons that can be deemed to be tenants. It states :

'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not

(a) a member of the owner's family, or

(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or

(c) a mortgagee in possession.

Explanation : A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under Section 2-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.'

In other words, the section defines who can be deemed to be a tenant. It should be noted that Section 4 does not provide for an application for a declaration that he shall be declared to be a tenant if he fulfils the conditions mentioned in the section. But then Section 74 (1) (a) makes an or : passed under this section an appealable order. Therefore Section 4 contemplates a procedure by which he could approach the Mamlatdar for the necessary relief. Section 71 of the Act states how the proceedings are to be commenced before the Mamlatdar. It states that the proceedings before the Mamlatdar save as expressly provided by or under the Act, shall be commenced by an application. Therefore a person who wants to claim a relief under Section 4 can make an application under Section 71 and any order passed on that application is made appealable. Thus it is not necessary that, in order to claim a declaration, the proceedings must be started under Section 29 as held by Dixit and Shelat JJ. in Maganbhai Kesarbhai Patel's case.

2. Another argument is provided by the provisions contained in Section 85A of the Act. This section was added to the Act by an amending Act of 1955 and has already been quoted at page 21 of this order. This section has a history of its own. In the case in 56 Bom LR 663 : (AIR 1954 Born 100), Gajendragadkar J. indicated a procedure when a dispute arises in a civil Court as to whether the defendant is or is not a tenant and such a dispute is to be determined by the Mamlatdar in his exclusive jurisdiction, then the civil Court should not dismiss the suit but stay the suit and refer the issues to the Mamlatdar for decision. That decision was given in 1952. At that time, there was no provision regarding the procedure. The Legislature therefore thought it necessary to amend the Act for providing a procedure to be followed by the Mamlatdar on a reference made to him by a Civil Court. Hence an issue which is exclusively triable by the Mamlatdar can be tried by him either on a reference made by a civil Court or in proceedings started before him. The reason given by Dixit J. in declining to give the declaration asked for by the petitioner therein was that there was no application made by the petitioner under Section 29 of the Act and, therefore, he could not get any relief. The Full Bench pointed out that if the Mamlatdar had jurisdiction to decide the question after it arose in the civil Court, he would also have jurisdiction to decide it before it arose in the Civil Court. As I have already pointed out, it was consistently held by the Court that when an application is made for a declaration that he is a tenant, it is open for the Mamlatdar to declare that he is either a tenant or not. I may, at the risk of repetition, refer to the decision of Chagla C. J. in : AIR1953Bom241 wherein he has stated that when the Legislature has left it to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not, it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or a protected tenant and he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant. I need not here again refer to the decision of this Court in 1959-37 Mys. LJ 626 where it has been stated that if the Mamlatdar could give a positive declaration, he could as well give a negative declaration, they being two facets of the same question. Thus the jurisdiction to decide whether a person is or is not a tenant vests exclusively in the Mamlatdar under Section 70 (b) of the Act and the civil Court is not competent to decide it.

84. Yet one more reason which appears to me very cogent as to why it should be held that the Mamlatdar is competent to give a negative declaration is this. Under Section 42 of the Specific Relief Act, any person entitled to any legal character may institute a suit against any person denying his title to such character, and the Court may in its discretion make therein a declaration that he is so entitled. Therefore if we were to hold that the Mamlatdar is not competent to give a negative declaration, then it is perfectly open for the plaintiff to go to a civil Court and ask for the relief under Section 42 and get a declaration that his opponent is a trespasser. The opponent in a proceeding before the Mamlatdar gets a declaration that he is a tenant because that matter is exclusively in his jurisdiction. Then there will be two conflicting decisions and it would not be safe to leave the litigant in doubt with two conflicting decisions. The Courts are there to resolve the conflicts and not to create them, and if it is possible for a Court to so interpret a section as not to create a conflict, it should do so. Further the lower Court or the authority concerned would be in difficulty as to which of the decisions is to be respected or implemented. Such a situation is hardly desirable in the administration of justice.

85. It is true that special Tribunals are constituted for special purposes and they get jurisdiction only to the extent given to them by the Legislature and the Court should not provide them with jurisdiction by interpreting the words so as to give a wider jurisdiction to them Chagla C. J. had considered this aspect of the case in : AIR1953Bom241 . His Lordship, while considering Section 70 read with Section 85 of the Act, has stated:

'There is another very serious difficulty which would arise if Mr. Tarkunde's view were to be accepted. Assuming that the civil Court was to hold that the defendant was a protected tenant. Mr. Tarkunde concedes that, under those circumstances, the civil Court would have no jurisdiction to pass a decree in favour of the plaintiff or to deal further with the suit and the matter will have to go to the Mamlatdar. Suppose in the proceeding taken before the Mamlatdar by the landlord the Mamlatdar came to the conclusion that the defendant was not a protected tenant. We would then have one decision by the civil Court and a contrary decision on the same point by the Revenue Court, and the question would arise which view was to prevail. It is in order to avoid such a conflict that the Bombay Tenancy and Agricultural Lands Act has ousted the jurisdiction of the Civil Court to determine the issue as to whether the defendant is a protected tenant or not.''

86. These observations of Chagla C. J. came for consideration by this Court in 1959-37 Mys LJ 626 and this Court held that the approach in connection with the interpretation of the words 'for the purposes of this Act' appearing in Section 32 of the Mysore Tenancy Act was not the correct approach to make. According to this Court, the words 'for the purposes of this Act' should not, be given a wider meaning so as to confer jurisdiction on the Tribunal in regard to matters which are not covered by the Act. It is only in regard to that aspect of the case this Court held that it is not a correct approach to make. But this Court has also held, as I stated earlier, that it is competent for the Mamlatdar, while deciding whether a person is a tenant, to decide that he is not a tenant, the same being two facets of the same question. Therefore if the Mamlatdar can give a positive declaration, there seems to be no reason why he should not give a negative declaration; such a construction would lead to the avoidance of a conflict which would otherwise be created by holding that the Mamlatdar is not competent to give a negative declaration. I may state here that the judgment of Chagla C. J. in : AIR1953Bom241 was considered by another Division Bench of this Court consisting of Somnath Iyer and Malimath JJ., in Anna Patel Ajmoddin Patel v. Basappa Bhagappa, (1958) 36 Mys LJ 622 and their Lordships held that that decision correctly lays down the law. Thus the observations of Chagla C. J. were approved by a Division Bench of this Court. In my view, this is a very cogent reason which should lead to the conclusion that the Mamlatdar is competent to give a negative declaration.

87. Thus, in my view, the view taken by the Division Bench consisting of Dixit and Shelat JJ. in Special Civil Appln. No. 278 of 1957 (Bom) cannot be supported either by the provisions of the Act or the authorities on the question.

88. Therefore, it appears to me that the view taken in 61 Bom LR 957 : (AIR 1960 Bom 56) (FB) by the Full Bench of the High Court of Bombay is a reasonable view to take.

89. For the reasons stated above, I am of the opinion that the Mamlatdar can, under the Act, entertain and decide an application filed by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act. The question referred to the Full Bench should, therefore, be answered in the affirmative.

OPINION OF THE COURT

90. In accordance with the opinion of the majority, our answer to the question referred to the Full Bench is in the negative. The case will now go back to the concerned Bench with this opinion, for disposal.


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