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Mangalbhai Fateshingh Chauhan Vs. Bai Naniba - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1960)1GLR163
AppellantMangalbhai Fateshingh Chauhan
RespondentBai Naniba
Excerpt:
.....be wresting the language of section 76a to give such extended and far reaching meaning to it. it however failed fully to appreciate that the collector had before the date of the filing of that belated appeal already decided to act suo motu in the matter and sent for the record of the case. the tribunal failed to appreciate that position and fell into an error when it acceded to the contention to the contrary urged on behalf of the opponent-owner......of the order of the mahalkari. another date which requires to be stated is 22nd may 1959 on which date the collector forwarded the paper of the case to the district deputy collector to review the case. toe contention which found favour with the tribunal and which is the one stressed before us by mr. shah who appears for opponent no. 1 is that it is the 22nd may 1959 which is the vital date and that being after the expiry of one year from the date of the order of the mahalkari the district collector had no jurisdiction to exercise his power of review in the present case. it will be convenient to set out here section 76a:76a. when no appeal has been filed within the period provided for it the collector may suo motu or on a reference made in this behalf by the divisional officer or the.....
Judgment:

S.T. Desai, C.J.

1. One question which arises for our determination on this petition is as to the interpretation of Section 76A of the Tenancy and Agricultural Lands Act and the scope and ambit of the powers of the Collector when he decides to act suo motu under that section and to call for the record of any inquiry or proceeding of any Mamlatdar for the purpose of satisfying himself as to the legality or propriety of any order passed by the Mamlatdar. Another question relates to limitation in the context of the exercise of the power of review conferred by Section 76A on the Collector.

2. Opponent No. 1 to the present petition is the owner of survey No. 82 admeasuring 2 acres and 24 gunthas and situated in village Partappura in Kaira District. The petitioner before us is the tenant of that land. Opponent No. 1 filed a tenancy application in respect of this land in the Court of the Tenancy Mahalkari on 7th May 1956 and the relief sought was recovery of possession of the land on the ground of default in payment of rent for three years 1952-53 1953 1952-53 1953 and 1954-55. The Tenancy Mahalkari held in favour of the owner and directed the petitioner to hand over possession of the land to the owner. That order was made on 14th May 1958. This date is crucial and we shall presently point out it is the terminus a quo of the arguments presented before us. While determining the matter in favour of the owner the Tenancy Mahalkari did not apply his mind to the question whether it was a fit case for granting relief against forfeiture. He had the discretion but he did not consider that aspect of the matter. An application for reviewing the decision of the Mahalkari was filed by the petitioner-tenant to the Collector. The Collector in the exercise of his powers under Section 76A however acted suo motu and called for the record and proceedings of the case some time prior to 2nd April 1959. The Collector then directed the District Deputy Collector to review the case under Section 76A. On 15th July 1959 the District Deputy Collector set aside the order passed by the Mahalkari and remanded the case to the Mamlatdar for deciding the matter in the light of the judgment given by him. He also directed that the parties should be allowed to lead further evidence. He pointed out in his judgment that the tenancy Mahalkari had not considered the question of exercising his discretion in the matter of granting relief against forfeiture in a case where the landlord claimed possession of the land on the ground of default in payment of rent. In pursuance of that order of remand proceedings were commenced in the Court of the Aval Karkun at Nadiad and in the course of those proceedings the petitioner expressed his willingness to pay within one month the amount of arrears which aggregate to Rs. 848.80 nP. The Aval Karkun thereupon passed an order directing the petitioner to pay that amount within one month and ordered that if the amount was not paid by the petitioner with in the prescribed time possession would be delivered to the opponent-owner. It is not in dispute that the petitioner-tenant did deposit the amount in the State Bank of India on 2nd September 1959.

3. Now as we have already mentioned the Collector of Kaira had suo motu called for the record and proceeding of that case prior to 2nd April 1959. The petitioner evidently being unaware of the fact that the Collector had decided to act suo motu in the matter filed an appeal to the Collector on 6 April 1959. This it is of significance to note was about eleven months after the order passed by the Tenancy Mahalkari directing the tenant to hand over possession of the land in dispute to the Opponent-owner. On the 15 June 1959 the petitioner-tenant filed an application before the Collector for leave to withdraw the appeal on the ground that the appeal had been filed by him beyond the period of limitation and further that the Collector had decided to take action in the matter under Section 76A of the Act. The appeal was allowed to be withdrawn.

4. The District Deputy Collector had as we have already mentioned acted under Section 76A and set aside the order of the Tenancy Mahalkari on 15 July 1959. The Opponent-owner preferred a revision application against that order to the Revenue Tribunal. The Revenue Tribunal set aside the order of the District Deputy Collector and restored the order of the Tenancy Mahalkari. It did so on two grounds. Firstly on the ground that the record had been called for after the expiry of one year from the date of the order passed by the Tenancy Mahalkari and secondly on the ground that the matter could not be reviewed under Section 76A as an appeal had been filed by the petitioner-tenant against the order of the Mahalkari. We have already made reference to the appeal. The Tribunal decided the matter in favour of the opponent-owner and the petitioner has now come to this Court on this petition.

5. It has been argued before us by Mr. B.K. Amin Learned Counsel for the petitioner that the Tribunal was in error in determining both the questions the one relating to limitation and the other relating to interpretation of Section 76A. Counsel relies on the date 14th May 1958 as the starting point relating to the question of limitation as that was the date on which the Tenancy Mahalkari passed his order directing the tenant to hand over possession of the land in dispute to the opponent-owner. He has drawn our attention to some further dates which we shall immediately proceed to state. It is an indisputable fact that it was on 2nd April 1959 that the Mamlatdar sent the record to the Collector. Says Mr. Amin this date is sufficient for his purpose and he has to rely on it because it is not clear as to when it was that the Collector actually called for the record of the case. The brief argument here is that the record must have been sent for on some date previous to 2nd April 1959 and that being the position it must he held that the Collector had in fact called for the record of the proceeding of the Mamlatdar before the expiry of one year from the date of the order of the Mahalkari. Another date which requires to be stated is 22nd May 1959 on which date the Collector forwarded the paper of the case to the District Deputy Collector to review the case. Toe contention which found favour with the Tribunal and which is the one stressed before us by Mr. Shah who appears for opponent No. 1 is that it is the 22nd May 1959 which is the vital date and that being after the expiry of one year from the date of the order of the Mahalkari the District Collector had no jurisdiction to exercise his power of review in the present case. It will be convenient to set out here Section 76A:

76A. When no appeal has been filed within the period provided for it the Collector may suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time.-

(a) call for the record of any inquiry or proceeding of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by and as to the regularity of the proceedings of such Mamlatdar or Tribunal as the case may be and

(b) pass such order thereon as he deems fit;

Provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.

6. The section it will be seen postulates two conditions which must be fulfilled before the Collector or the District Deputy Collector as the case may be can exercise the power of review conferred on him and whereby he can suo motu send for the record of any inquiry or proceeding of any Mamlatdar for the purpose of satisfying himself as to the legality or propriety of the order and as to the regularity of the proceeding of the Mamlatdar. The first condition is that no appeal should have been filed within the period prescribed for it when the recorded is sent for. This is laid down in terms express and explicit in the initial part of the section. The period for filing of an appeal is sixty days as prescribed in Section 79. The second condition postulated is that the Collector must send for the record before the expiry of one year from the date of the order of the Mamlatdar. Both the conditions must be satisfied before the Collector can assume his powers under Section 76A.

7. Now it would seem not seriously contestable that the Collector or District Deputy Collector has the power to call for the record of any inquiry or proceeding on any day after the expiry of the period of sixty days prescribed as limitation for the filing of an appeal. It is however strongly contended before us by Mr. Shah that we must have regard to Sub-section (2) of Section 74 of the Act. It is as under:

74. (1) ... ... ... ... ... ... ... ...(2) Save as otherwise provided in this Act the provisions of Chapter XIII of the Bombay Land Revenue Code 1879 shall apply to appeals to the Collector under this Act as if the Collector were the immediate superior of the Mamlatdar or the Tribunal. The Collector in appeal shall have power to award costs.

8. The argument is that Section 206 of the Land Revenue Code is a complete answer to the contention urged before us on behalf of the petitioner. That Section is as under:

206. Any appeal under this Chapter may be admitted after the period of limitation prescribed therefore when the appellant satisfies the officer or the State Government to whom or to which he appeals that he had sufficient cause for not presenting the appeal within such period.

No appeal shall lie against an order passed under this section admitting an appeal.

9. It is said that in the appeal filed by the petitioner-tenant he has stated that there was delay in the matter of the filing of the appeal and that the delay may be condoned. It is then said that that appeal must have been admitted by the Collector before he allowed the some to be withdrawn. The difficulty in the way of Mr. Shah is twofold. Firstly there is nothing before us to show that the Collector had considered the matter and applied his mind and satisfied himself that the petitioner-tenant had sufficient cause for not presenting the appeal within the prescribed period. The other difficulty in the way of Mr. Shah is that this contention is being raised by him for the first time in the course of the arguments before us.

10. We put to ourselves the question whether the initial words of Section 76 where no appeal has been filed within the period provided for it must relate not only to the period of sixty days prescribed by Section 79 but go further than that and embrace a case where an appeal is presented beyond the period of sixty days and the Collector is satisfied that the appellant had sufficient cause for not presenting the appeal within the prescribed period In our judgment it would be wresting the language of Section 76A to give such extended and far reaching meaning to it. In language plain and simple it postulates the condition that the power of review is to be exercised only where no appeal has been filed within the period provided for it. These words indubitably indicate that it is competent to the Collector to move suo mow in any such matter immediately after the period of sixty days of the passing of the order sought to be reviewed has elapsed. They do not permit of any meaning of the nature urged before us by Mr. Shah. Therefore the contention relating to interpretation of Section 76A must be determined in favour of the petitioner before us.

11. To turn to the other contention of the petitioner relating to the observance of the second condition postulated by Section 76A. It is urged that the record and proceeding in the case had in fact been called for by the Collector within one year of the date of the order and not later. In the earlier part of our judgment we have mentioned certain dates which have bearing on this aspect of the case. The date relied on by Mr. Amin is the 2nd April 1959 whereas the date relied on by Mr. Shah is 22nd May 1959. There is no dispute that the starting point of time is the 14th May 1958 when the Mahalkari made his order. The argument of Mr. Shah here is that the date to be regarded as crucial is 22nd May 1959 the date on which the Collector forwarded the papers to the District Deputy Collector and that it is said was after the expiry of the prescribed period of one year. It is true that the Collector forwarded the papers to the District Deputy Collector after the expiry of one year from the date of the order of the Mahalkari. The argument however ignores the unmistakable language of the initial words of the proviso in Section 75A. The proviso expressly speaks of the date on which the record is called for. It is that date which has not to be beyond the expiry of one year from the date of the order sought to be reviewed. The record in the case before us as we have already pointed out must be regarded as having been sent for before 2nd April 1959 since it was on that date that the Mamlatdar in fact sent the record to the Collector. It is this date which on this point of limitation in our judgment affords the terminus a quo of the whole matter. If this be the date to be regarded and we have no doubt on the point it must be held that the record had not been sent if for after the expiry of the prescribed period of the year.

12. These are matters not to be considered in any abstract manner nor should there be any doctrinaire approach in their determination. In our opinion on both the points the Tribunal has viewed the matter in a highly technical manner which is not permissible and which does not accord with the language and import of the relevant sections. The conclusions in these cases must be guided not by any over refined technicalities but having regard to the realities of the situation. The Tribunal took the view that the petitioner tenant had preferred an appeal against the order of the Mamlatdar and in that appeal he had prayed for condonation of delay. It however failed fully to appreciate that the Collector had before the date of the filing of that belated appeal already decided to act suo motu in the matter and sent for the record of the case. That if we may so describe it was the specialty of the whole situation. The Tribunal failed to appreciate that position and fell into an error when it acceded to the contention to the contrary urged on behalf of the opponent-owner.

13. Another argument urged before us by Mr. Shah is that it cannot be said that the Collector had sent for the record and proceedings of the case. It is said that there is nothing on the record to show that the Collector had purported to act under Section 76A. It is difficult for us to appreciate this contention. We wonder what reason the Collector had when he sent for the record of the case unless it was for the purpose of satisfying himself as to the legality or propriety of the order passed by the Mamlatdar. The only view permissible to the Court to take seems to be that the Collector when he sent for the record of the case wanted to satisfy himself and if necessary take action under Section 76A by passing such order thereon as he deemed fit.

14. Another argument sought to be urged before us by Mr. Shah is that under Section 76A the Collector had no power to transfer the matter to the District Deputy Collector and the District Deputy Collector had no jurisdiction to deal with the matter. Mr. Shah has drawn our attention to Section 74 which relates to the power of the Collector to transfer appeals. The argument is that the Collector has been expressly authorized to transfer an appeal pending before him by Section 74A whereas Section 76A does not confer any such power on him in the matter of review. We would have examined this contention from all its aspects but it is not necessary to this judgment by doing so since in our opinion we should not permit burden Mr. Shah to raise this wholly new contention before us at the hearing of this petition. The present contention therefore must also be negatived.

15. In the result the petition succeeds. The rule will be made absolute with costs.


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