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Mohammed Hidayat Ali Vs. Alopi Shanker and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1898 of 1969
Judge
Reported inAIR1971AP376
ActsTenancy Law; Andhra Pradesh (Telengana Area) Teancy and Agricultural Lands Act, 1950 - Sections 32 and 89(2); Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 40, Rule 1
AppellantMohammed Hidayat Ali
RespondentAlopi Shanker and ors.
Appellant AdvocateUpendrala Waghray, Adv.
Respondent AdvocateDevi Perhad Misra and ;Mirza Munnavar Ali Baig, Advs.
Excerpt:
.....and defined limitations. the departure from the normal practice that a receiver is not to be appointed except after notice to the parties concerned was held to be tenable by the lahore high court in cases where the object of appointment of receiver might well be nullified if notice were issued. the joint collector also failed to appreciate the distinction between a tribunal having the powers to appoint a receiver and the exercise of the power only after notice to the party affected by it. the conditions requisite for the appointment of a receiver are not satisfied. if it could be so described is unconvincing......taken and held by the government till the disposal of the petition. this order was affirmed by the joint collector on a revision perdition presented to him.6. on behalf of the petitioner, a three-fold submission i made, firstly it is urged that the tahsildar exercising jurisdiction under section 32 of the act. has no power to appoint a receiver thereby divesting the party in possession from his holding. before a final pronouncement is made on the right to recover possession under section 32, the tribunal acting within the limited jurisdiction conferred on it, cannot disturb the status quo. it is submitted that the order by which the petitioner's possession is taken away is illegal because the tahsildar has not given notice to him and he has not been heard. thirdly, it is submitted.....
Judgment:
ORDER

1. The short point in this revision petition is whether an order of appointment of a receiver made by the Tahsildar without notice to the party in possession pending decision of an application made under Section 32 of the Andhra Pradesh (Telangana Area) Tenancy & Agricultural Lands Act. is without jurisdiction or is otherwise liable to be set aside in revision.

2. The case of the revision petitioner is that the lands in question are family and that in a civil litigation among the members of the family a receiver was appointed by the Court and ultimately a final partion decree was made. It is alleged by the petitioner that one Baijnath alias Bhayyalal got his name recorded as tenant of the entire area measuring about 800 acres of pasture land. The claim of Baijnath that he was a protected tenant is challenged by the petitioner and other members of the family.

3. It is further alleged by the petitioner that Bhayyala had given up his claims to the land after taking possession of a part thereof. The relinquishment of his interest was notified by him to the Civil Court as also the Tahsildar. However, his sons filed later the application under Section 32 of the Act. Their claim to be restored to the possession is in question the right of their father to effect and relinquishment of the interest of protected tenancy. It is during the tendency of this application that the order now challenged in revision was made by the Tahsildar.

4. It is unnecessary for the purposes of this proceedings to set out in detail the case of the respondents. Suffice it to mention that their case rests upon a subsisting interest as protected tenants.

5. On a application made to him. the Tahsildar made on order ex parte directing the appointment of a Receiver and possession property to be taken and held by the Government till the disposal of the petition. This order was affirmed by the Joint Collector on a revision perdition presented to him.

6. On behalf of the petitioner, a three-fold submission I made, Firstly it is urged that the Tahsildar exercising jurisdiction under Section 32 of the Act. has no power to appoint a receiver thereby divesting the party in possession from his holding. Before a final pronouncement is made on the right to recover possession under Section 32, the Tribunal acting within the limited jurisdiction conferred on it, cannot disturb the status quo. It is submitted that the order by which the petitioner's possession is taken away is illegal because the Tahsildar has not given notice to him and he has not been heard. Thirdly, it is submitted jurisdiction as the conditions warranting the appointment of a receiver are lacking in the instant case.

7. The learned Counsel for the respondents has argued that the Tahsildar is invested with all the powers which a Civil Court has under Code of Civil Procedure and that the ex parte order cannot be assailed either on the ground of want of competence or on the score that the jurisdiction was irregularly exercised.

8. Section 32 of the Act provides inter alia, that a tenant entitled to possession of any land under any of the provisions of the Act may apply to Tahsildar in writing in the prescribed from for such possession. On receipt of the application, the Tahsildar shall, after holding an enquiry pass such order 4 thereon he deems fit. Mr. Upendralal waghray lays considerable stress on the wording lays of sub-section (3) of Section 32. which makes the holding of an enquiry a precondition for passing an order calculated to adversely affect the status quo ante in regard to possession of the land in dispute. He argues that the special Tribunal has no seisim over the property. Its power is restricted to the making of the final order as to possession on enquiry., where it comes to the conclusion that the applicant is entailed to the possession of the property. Till the final adjudication is made, the Tahsildar with a jurisdiction circumstancribed by the limitations imposed by Section 32, has no season over the property. On this hypothesis, he submits the interim order, the result of which is deprivation of the respondent's possession must be held to be incompetent.

9. Learned counsel for the respondent Mr. D. P. Misra lays stress on Section 89 of the Act which enables the exercise by the Tahsildar and Collector of all or any of the powers conferred on civil courts by the Code of Civil Procdedure. for the purposes of an inquiry under the provisions of the Act. The effect of this provisions according to counsel is to make the jurisdiction of the Tahsildar co-extensive with that of a Civil Court. There is a controversy under Section 32 with regard to right to the possession of immovable property and in respect of the inquiry the provisions of the Civil Procedure Code are attracted in their entirety so as to invest the Tahsildar performing the functions assigned to him under Section 32 with all the powers a civil Court has under the Code. So runs the argument of the Counsel.

10. The ambit of the jurisdiction conferred by Section 89 of the Act has been the subject-matter of exposition by a Full Bench of the Court in Radha Bai v. b. Chinnyya : AIR1968AP353 . The precise question in that case was whether an order of remand made by the Joint Collector was competent. While coming to the conclusion that the Collector has the power to direct a remand of the case while exercising appealtle jurisdiction under Section 92. the learned Judges defined the scope of the sub-section (2) of Section 89 as on conferring on the Tahisldar, the Tribunal and the Collector 'all the powers conferred on the Civil Courts by the Code of Civil Procedure.'

11. The construction placed on Section 89(2) by the Full Bench is clearly to the effect that the ambit of jurisdiction under that provision is indistinguishable in its range format he powers conferred by the Civil Procedure Code. But the question posed here in whether the Tenancy Act itself does not impose restrictions the the Tribunal exercising powers under Section 32. The operation of Section 89 (2) which confers in all their plenitude the powers derivable from the Code of Civil Procedure. is subject to such limitations as the Tenancy Act itself imposes. The matter may be put in a different from; where the provisions of the Tenancy Act restrict the powers conferred on an authority functioning under that Act. the limitation so imposed being one of substantial law,. cannot be overcome by resort to the terms of procedural import devised by Section 89(2). A special Tribunal with jurisdiction restricted by the enactment under which it is created can function only within its express and defined limitations. If Section 32 makes it clear that the Tribunal's season over the property in dispute is limited to the making of the final order after inquiry. it appears to me there there is no warrant for resorting to the provisions of Order 40 of the Civil Procedure code or to the inherent powers execrable under Section 151 for making an interim order appointing a receiver.

12. A am inclined to take the view that the inendement of Section 32 is that the Court's aid for recovery of possession can be extended only after the adjudication in favour of the right set up by the applicant. Till the court reaches that conclusion it has no competence to dispossess the party in possession. The essence of the jurisdiction is that the power to dispossess is dependent, or arises, on the adjudication that the applicant is entitled to the possession asked for. I am consequently of opinion that the Tahsildar has no power to appoint a receiver before he comes to a consolation about the merits of case after full-drees inquiry.

13. What I have indicated makes it plain that it is not permissible for the Tahisldar to invoke the provisions of Section 11 in a matter of this description. In Hajee Mohd. Abdul Rahaman v. Tajunnissa begum. : AIR1953Mad420 Venkatarama Iyer. J speaking for the Division Bench of the Madras High Court said:

'Thus there is overwhelming authority for the position that when the claim has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be my the final hearing in the suit. To grant any releif in an interim application would be to grant the relief which an prattle be granted only by the ultimate determination in the suit and the decree following thereon.'

14. It is true that in that case the appointment of receivers was referred to as one of the powers which the Civil Procedure Code confers on Courts for granting interim relief. But the Code prescribes certain conditions which regulate the exercise of the powers. By party of resigns, the view taken by the D.B. in the case quoted above is applicable to a Tribunal whose jurisdiction is exercisble only on the final determination of right after inquiry and such I conceive to be the effect of Section 32.

15. The second submission of petitioner's Counsel is that the ex parte order is without legal competence. It is true that in some cases. Courts have held that an ex parte order appointing a receiver is not devoid of Jurisdiction. The authority for this is found in Asadali Chowdhury v. Mohammad Hossain, (AIR 1961 Cal 427) and Mt. Ishri v. shib Ram. (AIR 1923 Lah 239 (2) ).But the powers execrable only in cases of emergency. In the former case, the Calcutta High Court laid down that an ex prate order may be made in cases of emergency where the issue of notice may so delay the proceedings as to defeat the object of the order made. The departure from the normal practice that a receiver is not to be appointed except after notice to the parties concerned was held to be tenable by the Lahore High Court in cases where the object of appointment of receiver might well be nullified if notice were issued.

16. The order of the Tahsildar does not indicate that a grave emergency impelled him to pass the ex prate orders. On the other hand. the reason given negatives condition or state of emergency. The Tahsildar said that Section 38-E of the Act has come into force and consequently the interests of the tenants require to be safeguarded. For one thing he was not right in acting on the assumption that the petitioner was entitled to possession and therefore, safeguards had to be devised . Whether the applicants were entitled to the tenancy right is a controverted issue. Secondly, the fact that Section 38-E has become operative does not give rise to an emergency. The Tahsildar's order discloses that he was unaware of the criteria by which the mater of urgency has to be determined. The Joint Collector also failed to appreciate the distinction between a Tribunal having the powers to appoint a receiver and the exercise of the power only after notice to the party affected by it. The existence of the power does not necessarily imply the power to exercise it ex art without hearing the party concerned. Assuming that the Tahsildar had the competence to appoint a receiver. the manner of the exercise of the power is so arbitrary and inconsistent with canons of judicial discretion that the order has to be set aside for that reason alone. While I accept the contention of Sri Mishra that in rare cases a Court may appoint a receiver export there is sufficient indication in the instant baise that there is no legal basis of the use of the power. The reason assigned does not justify the use of the power without notice to the opposite party.

17. What are the grounds on which the Tahsildar purported to Act. Under Order 40. Rule 1 the Court may appoint a receiver where it appears to it to be just and convenient . The Tahsildar has said that the interests of the tenants have to be safeguarded and it is also 'in the interest of natural justice' to grant the prayer of the applicants. The conditions requisite for the appointment of a receiver are not satisfied. That it is convenient for one party to have a receiver is no valid legal basis. It is not the convenience of one party alone that justifies the depression of the possession of the opposite party. The requirement is a rigorous one that the appointment of a receiver can be made when it is just as also convenient. This implies that the competing interests should be weighed and the test is whether the order is just when viewed in that context. There was no judicial use of the discretion in taking the property into the custody of the Government and in depriving the possessor of his possession. The Joint Collector observed:

'No doubt the balance of convenience has got to be considered while a receiver is appointed.'

The order of the Joint Collector repeats the error of the Tahsildar. The question is not to be decided on the ground of convenience without reference to the concurrent requirement.

'The Joint Collector then proceeded to say that. '........................here the matter before us is a tenancy petition undue Section 32 of the Tenancy Act where the sons of the protected tenant are seeking possession of the lands held by their father.'

18. This in the opinion of the Joint Collector, furnishes a features of distinction justifying a departure from the obligation of applying the rulings cited by counsel. And in his view the proceeding being one under the Tenancy Act or the sons of the tenant being the petitioners are also valid grounds of distinction. Thereto of the decision cited by counsel is not set out. Nor is any distinction of principle attempted to be made. It is strange that he was not alive tot he position that it was in exercise of the powers vested in a civil Court that the receiver could be appointed. How then could he say that the rulings to which civil court were amenable did not govern the case on hand? The reasoning is puerile and the distinction drawn. if it could be so described is unconvincing. It can hardly merit serious consideration. The Joint Collector also begs the question in stating that the tenant is a 'protected tenant'. unmindful of the fact that the controversy is yet to be decided.

19. The Joint Collector followed his earlier observation with the dictum that:

'The Tahsildar keeping in mind the fact that the interests of the tenants should be protected had appointed a receiver'

which is tantamount to saying that it is only the interests of the applicant that determine the issue. It is manifest that the Joint Collector has not taken into consideration the pros ad also the cons of the question. In the evaluation of the merits of the case, he was totally oblivious of the fact that there was the interest of the possessor also to be weighed in the balance.

20. There is something more that he said:

'................................he has not erred in the appointment of the Receiver and in fact his action has not prejudiced any one while on the hand ensuring justice to all.'

21. In the latter part of the above extract, the Joint Collector overlooks that is obvious. To his mind, a party is not prejudiced when he is turned out of possession of his property even before his case is found against. This naive assessment of the effect of the order indeed him into the complacent conclusion that there was nothing illegal or irregular in the order of the Tahsildar.

22. The views expressed by the Joint Collector reveal that he was unaware of the limitations subject to which a Court acts under Order 40. Rule 1 of the Code of Civil Procedure. When his attention was drawn to the principles laid down by decided cases, he found no use of such precedents. He said the decisions were only for a civil Court. Was he not deign with a petition under Section 32 of a protected tenant? and that according to the Joint Collector. made all the difference. The Tahsildar and the Collector did not appreciate that it was not the interest or convinces of the applicant alone that matters. The order had to be set aside ass the basic provisions of Order 40 R. 1 were disregarded firstly in making the ex parte order when there was no legal basis for it, and secondly., in ignoring the essential criteria that alone warrant the appointment of a receiver. The revision petition is therefore allowed with costs.

23. Petition allowed.


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