1. This petition raises the question of interpretation of the proviso to Section 43C, inserted in the Bombay Tenancy and Agricultural Lands Act. 1948 by Amending Act 13 of 1966 and its effect upon the jurisdiction of the Civil Court in which the petitioners and their deceased brother Ambalal had tiled a suit for a decree for eviction, against their tenant, the original respondent No, 1 The petition came up for hearing before Divan J on February 24, 1964 who feeling that there was a conflict between two decisions of this Court, one an unreported decision in .Special Civil Appln. No. 105 of 1960 (Guj) decided by S.T. Desaf C J. and Raju J on January 19. 1961 and the other in Kalicharan v. Mahalaxmi : (1963)4GLR145 referred the case lo a larger Bench That is how this matter has come up before us.
2. Pending the hearing of this petition. the original respondent No. 1 died and respondents 1-A lo 1-G were brought on record as his heirs and legal representatives
3. Before we proceed lo consider the question arising in this petition, it is necessary to state a few facts.
4. The petitioners and the said deceased Ambalal were at all material times the owners of survey No. 226 admeasuring 37 gunttiRS situate within the municipal limits of the town of Nadiad. On May 4, 1956 the petitioners and the said Ambalal filed the aforesaid suit, being Suit No. 152 of 1956. in the Courl of Civil Judge, Senior Division at Nadiad against the original respondent No. 1 for recovery of possession of the suit land. While the suit was pending, the then Bombay Tegistature passed an amending Act, being Act 13 of 1966 which. among other things, amended Section 38, inserted Section 43C and its proviso and brought about several other changes in the principal Act 67 of 1948, The Amending Act 18 of 1056 was brought into operation as from August 1, 1966 On September 5 1956 the learned Civil Judge, Nadiad passed a decree directing the original rsspondent No. 1 to hand over possession of the said land to the petitioners and the said Ambalal. On October 24, 1956 the aforesaid decree was executed and possession was taken from the original respondent No. 1 and handed over to the petitioners and the said Ambalal. It appears that the learned Civil Judge passed the aforesaid decree basing his judgment on the ground that the Amending Act 13 of 1966 would not affect a pending litigation and that the Act as it stood at the date of the institution of the said suit would apply. The original respondent No. 1 did not take any steps against the said decree and allowed the decree to become final In 1958, however, he filed an Application under Section 29(1) of the Act on the ground that he had been wrongly dispossessed and prayed for recovery of possession from the petitioners and the said Ambalal. By his order dated June 16, 1959. the Mamlatdar allowed the application and ordered possession to be restored to the original respondent No. 1 The petitioners and the said Ambalal thereupon filed an appeal before the Prant Officer. Nadiad who, by his order dated September 30. 1959 allowed the appeal and dismissed the tenancy application filed by the original respondent No. 1. Thereafter original respondent No. 1 filed a revision application before the Gujarat Revenue Tribunal who allowed the revision and .set aside the order passed by the Prant Officer. The Tribunal followed the Full Bench decision of the High Court of Bombay in Maganbhai Jethabhai v. Somabhai 60 Bom I,R 1383 (FB) and held that in view of the proviso to Section 43C the tenancy rights of the original respondent No. 1 were retrospectively revived notwithstanding the enactment of the Amendment Act 33 of 1952 which excluded the land in question from the applicability of the Act and further hold that the aforesaid decree passed by the learn ed Civil Judge was a nullity, having been passed without jurisdiction. It is this order which has been challenged in the present petition
5. The question which arises for our determination is whether as a result of the insertion of Section 43C and the proviso in Act 67 of 1948 the Civil Court which passed the decree for possession was deprived of its jurisdiction and whether the decree was, therefore, incompetent as having been passed without jurisdiction. In order to appreciate this question, it is necessary to consider a few provisions of the Act and the legislative changes made, in the Act from time to time. Section 2(8) of the Act defines 'land' as land used for agricultural purposes including sites of farm build-Ings appurtenant to such land used for agricultural purposes and sites of dwelling houses occupied by agriculturists and agricultural labourers or artisans and land appurtenant to luch dwelling houses. Clause (14) of Section 2 defines a 'protected tenant as a person who la recognised to be. a protected tenant under lection 81. and K 'tenant' under Section 2(18) means an agriculturist who holds land on lease and Includes a person who is deemed to be a tenant under the provisions of this Vet. Section 4 provide that 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 Section H provides that no tenancy of any land held by a tenant can be terminated except in the circumstances set out therein, and section 34 limits the right of a landlord to determine a protected tenancy only on the grounds stated therein. Section 29 lays down the procedure for taking possession and Sub-Section (2) thereof inter alia provides that no landlord shall obtain possession of any land held by a tenant except under an order of the Mamlatdar, Section 70 sets out the various duties of the Mamlaldar and Clause (b) thereof provides that it is the Mamlatdar who has to decide whether a person is a tenant or a protected tenant Section 85 lays down a bar to the jurisdiction of a Civil Court and provides 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, deffded or dealt with by the Mamlatdar or Tribunal, a manager, the Collector or the Revenue Tribunal in appeal or revision or the Stale Government in exercise of their powers of control It also provides that 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 am-Civil or Criminal Court. Under the Explanation to that Section a Civil Court shall include a Mamlaldar's Court constituted under the Mamlaidar's Courts Act 1906 Section 88. as it stood prior to the Amendment Act 33 of 1952, provided that the Act was not to apply to lands held on lease from the Crown, a local authority or a co-operative society or the land held on lease for the benefit of an industrial or commercial undertaking Clause (c) of Sub-section (1) of Section 88 provides that the Act was not to apply to any area within the limits of Greater Bombay within the limits of the municipal boroughs of POONA City and Suburban. Ahmedabad, Sholapur. Surat and llubli and within a distance of two miles of the limits of such boroughs The land in question being within the municipal limits of Nadiad did not fall under Clause (c) of Sub-section (1), and therefore the Act applied and consequently the petitioners were not entitled to terminate the tenancy of the original respondent No. 1 except under the provisions of sections 14 and 34. That position remained until the Legislature amended Section 88 by Act 33 of 1952 which came into force on January 12, 1953 The amending Act. amongst other things, amended Clause (c) of Sub-section (1) by providing that the areas lo which the provisions of the Act were not to apply were:
'any area within the limits of Greater Bombay, within the limits of the Municipal Corporations constituted under the Bombay Provincial Municipal Corporations Act. 1940, within the limits of the municipal boroughs constituted under the Bombay Municipal Boroughs Act, 1025. and within the limits of any cantonment.'
The affect of this amendment was that all lands situate within the limits of municipal boroughs constituted under the Bombay Municipal Boroughs Act, 1925 were excluded from the application of the Act. The land in question being situate within the limits of the municipal borough of Nadiad was thus taken out of the applicability of sections 1 to 87 of the Act and it was because of that fact that the petitioners and the said Ambalal terminaled by a notice the tenancy of the original respondent No. 1 and on his failure to hand over possession filed the aforesaid suit. As already stated, while that suit was pending, the Amending Act 13 of 1956 was enacted and was brought into force as from August 1. 1956. The Amending Act inter alia enacted Section 43C and its proviso. Section 43C as so enacted provided:
'Nothing in sections 32 to 32K (both Inclusive) and 43 shall apply to lands in the area within the limits of-
(a) Greater Bombay,
(b) a municipal corporation constituted under Bombay Provincial Municipal Corporations Act. 1949,
(c) a municipal borough constituted under the Bombay Municipal Boroughs Act, 1925.
(d) a municipal district constituted under the Bombay District Municipal Act. 1601.
(e) a cantonment, or
(f) any area included in a Town Planning Scheme under the Bombay Town Planning Act. 1954-
Provided that if any person has acquired any right as a tenant under this Ac( on or after the 28th December 1948. the said right shall not be deemed to have been affected by the Bombay Tenancy and Agricultural Lands (Amendment) Act. 1962, or (save as expressly provided in Section 43D), by the Amending ct, 1955, notwithstanding the fad that either of the said Act has been made applicable to the area in which such land is situate'
The Amending Act 13 of 1956 also deleted Clause (c) of Sub-section (1) of Section 88 with the result that the Act was once again made applicable to lands situate within the limits of borough municipalities. Prima facie, the effect of this amendment was that if a person had acquired any right as a tenant under the Act on and after December 28. 1948 such right was deemed not to have been affected by the Amending Act 33 of 1952 notwithstanding that that Act was made applicable lo the area in which such land was situate.
6. The effect of the proviso to Section 45C was considered in 60 Bom LR 1383 (FB) (supra) by a Full Bench of the High Court of Bombay. That was a case where the landlord had terminated the tenancy on March 31, 1956 and had then filed a suit in the Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906 The Mamlatdar had passed a decree in favour of the landlord on June 30. 1966. i.e before the Amending Act 13 of 1966 came into force The lenant. however, had filed a revision application and that revision application was pending on August 1, 1956 when the Amending Act came into force. The Full Bench held that the right of the tenant under Act 67 of 1948 was, by a legal fiction introduced by the proviso to section 43C, continued and was not affected by the Amending Act 33 of 1952 and that the proviso to Section 43C was applicable to the case as there was no final judgment against the tenant in the sense that the Judgment given by the Mamlatdar was subject o a revision and the revisional Court was bound to take notice of the change in law effected by the proviso. The Full Bench held that the proviso to Section 43C afforded protection to the tenant if the tenant had the protection under the Act notwithstanding the fact that that protection was taken away by the Amendment Act 38 of 1952. That protection must be given to the tenant even though It was claimed after a suit for ejectment was filed against him and the protection was afforded by the proviso which was enacted after the suit was instituted. A two-fold result followed from this decision: (1) that though Act 33 of 1952 took away lands situate within the limits of the municipal boroughs from the ambil of the Tenancy Act, the rights of a tenant if he had acquired them on or after December 28, 1948 were, notwithstanding that fact, protected by the proviso as if the Amending Act 33 of 1952 never applied; and (2) the proviso being held retrospective and creating a legal fiction, it applied to suits for possession filed even before it came into force, so long as the suit was not concluded by a final judgment. In the case before us, though the suit was filed before Act 13 of 1950 came into operation, the decree was passed on September 5, 1955 i.e after the Amending Act 13 of 1956 was brought into operation Therefore, under the authority of the decision in Maganbhai's case, the proviso to Section 43C would apply to the suit which was pending on August 1, 1956 although the suit had been instituted before the Amendment Act was enacted.
7. In Special Civil Appln. No. 105 of 1960 (Bai Ashi v. Mahomed Sadrnddin (Guj) ) decided by S. T Desai C J. and Raju J. on January i9. 1961, the landlord had filed a suit on April 24, 1956 but the decree in favour of the landlord was passed on April 22, 1957 after Act 13 of 1958 came into force. Pursuanl to the decree the landlord obtained possession from the tenant on June 15, 1957 On October 4, 1957 the tenant filed an application under Section 29 of the Act for restoration of possession The Mamlatdar held that he could not pass any order contrary to the decree passed by the Civil Court and on that ground alone rejected the tenancy application. An appeal by the tenant to the Prant Officer was allowed. The landlord thereupon carried the matter in revision to the Tribunal and the Tribunal held, as it did in the present case, that in view of the proviso to Section 43C. the Civil Court had no jurisdiction to try the suil and pass a decree for possession The Tribunal, however, held that though the tenant was a protected tenant, the Civil Court was competent to decide the question whether his right was protected under the legal fiction provided in the proviso and that as the Civil Court had decided the question, though erroneously, there was finality and the tenant was therefore not entitled to possession under Section 29(1). In that view, the Tribunal set aside the order passed by the Prant Officer and confirmed the order passed by the Mamlatdar and it was that decision of the Tribunal which was challenged in the petition. Following the decision in Maganbhai Jethabhai's case 60 Bom LR 1383 (FB) the Division Bench held that the proviso to section 43C had retrospective effect and that the effect of that proviso was as if the Amending Act 33 of 1952 had not been passed and protected the rights of the tenant which he could claim on and after December 28. 1948 under Act 67 of 1948. It was, however, contended on behalf of the landlord that the decision in Maganbhai' -case 60 Boni LR 1383 (FB) (supra) did not touch the question of jurisdiction of the Civil Court to pass the decree under which the landlord had recovered possession from the tenant and which had also the effect of terminating the tenancy and that the Full Bench decision merely touched the rights of the tenant as a protected tenant. II was also contended that pending proceedings before a Civil Court were not affected by the introduction of the proviso to Section 43C and were distinct and separate from the rights of a tenant under the 1948 Act and that such pending proceedings were saved by Clause (b) of Section 89(2) These contentions were rejected by the Division Bench. The Division Bench observed that the saving extended only to the right, title and interest etc., which was acquired or which accrued under the old Act, i.e. Act of 1939, provided, however, there was no express provision in the new Act in respect of that right, title or interest But where the new Act contained an express provision in respect of any right, title or interest, there was nothing which could be said to have been saved by the saving clause. Turning to Sub-clause (ii) of Sub-section (2) (b), they held that that clause dealt with legal proceedings but those legal proceedings were not all legal proceedings but only those legal proceedings in respect of a right, title or interest which had been acquired or which accrued under the old Act. The Division Bench also held that sub-Clause (ii) of Sub-section (2) (b) had to be read in the context of and along with the initial words of Clause (b), namely, 'save as expressly provided in this Act.' It was observed that when there was anything expressly provided in the Act in respect of any right, title or interest, neither right nor title nor interest was saved nor was any legal proceeding coupled with right, title or interest saved by the saving clause, and that that Interpretation was a complete answer to the contention urged before them on behalf of the landlord. On this reasoning, the Division Bench allowed the petition and made the rule absolute. In (1963) 4 C.L.R 145 a decision to which I was a party, a piece of land situate within the municipal limits of Baroda was leased to defendant No. 1. Defendant No. 2, however, was in actual possession of the land. The plaintiff filed a suit for possession. The first defendant remained absent at the time of the hearing of the suit and therefore a decree against him was passed ex parte. The second defendant, however, alleged that he was a protected tenant under the Tenancy Act. That suit was filed on March 26. 1954 and was decreed by the trial Court on June 29. 1955. An appeal against the decree was filed on August 6. 1955 and before that appeal could be disposed of, 'the Amendment Act (3 of 1950 was enacted and brought into force. The question which arose in the petition before us was whether by reason of the proviso to Section 430. the jurisdiction of the Civil Court in a suit which it was competent to entertain and try at the date of its institution, was divested. We there held that the proviso to Section 43C of the Tenancy Act as amended by Act 13 of 1956 did not divest the Court of its jurisdiction in respect of a suit which was already instituted before the Act came into force and we further held that the proviso to Section 43C in respect of lands situated within the limits of the borough municipalities saved the right of a person as a tenant in relation to agricultural land of which he was a tenant and that it was that right which was not deemed to have been affected by the provisions of Act 33 of 1052 but it did not give him a right to have a suit against him by a landlord for possession tried by the revenue authority. A similar view was also held by a single Judge of the Maharashtra High Court in Pandurang Hari v. Shankar Maruti, 62 BLR 873 There is, therefore a clear conflict between the unreported decision in Special Civil Appln No. 105 of 1960 (Gu.j) and decision in Kalicharan's case : (1963)4GLR145
8. But, that conflict is now clearly set at rest by a recent decision of the Supreme Courl in Ishverlal Thakorlal v. Motibhal Nagjibhai : 1SCR367 In that case, the appellant-landlord had granted a lease of land on June 18 1939 in favour of the respondent's father and the land was situate within the limits of the Broach Municipality The land remained in possession since then of the respondent's father and on his death of the respondent By a notice dated November 2, 1955 the appellant terminated the tenancy as from March 31, 1956 and as the respondent failed to hand over possession the appellant filed a suit for eviction and that suit was decreed in favour of the appellant In appeal the learned District Judge set aside the decree and dismissed the suit holding that by reason of the proviso to Section 43C. the Civil Court had no 'jurisdiction A second appeal filed by the appellant was summarily dismissed by the High Court and thereupon the appellant went to the Supreme Court in appeal under special leave. The Supreme Court approved the construction placed on Section 43C and its proviso in Maganbhai Jethabhai's case, 60 Bom LR 1883 (FB) (supra) and held that:
'By the substantive Clause IX of Section 43C the tenants do not acquire in respect of lands described therein rights conferred by Ss. 32 to 32R. That part of Section 43C therefore in the nature of a qualification or an exception and functions as a proviso to Sections 32 to 32E. The proviso to Section 43C goes on, not to carve out an exception or to impose a qualification to the exclusion prescribed by the main enactment but deals with a matter which is unrelated thereto. in terms it seeks to protect rights acquired or arising not under Ss. 32 to 82R (which are added by Act 13 of 1956) but under the principal Act 67 of 1948 on or after December 28, 1948, and those rights are protected not from the operation of the substantive part of Section 43C but from operation of Act 33 of the Amending Act of 1952. It may be recalled that by Act 33 of 1952, the Act ceased to apply to lands within the municipal 'boroughs But the intention disclosed by the proviso to Section 43C was to declare that all rights acquired by persons as tenants under the principal Act were to continue to remain available to them in respect of the lands within the municipal boroughs as if Act 33 of 1952 was never enacted '
It was however contended on behalf of the appellant that as the tenancy was determined before Act 13 of 1956 came into force according to the law as it then stood and which applied to the land in question the right of the appellant to recover possession from a person who was not a tenant then was not deprived of by the proviso to Section 43C Reliance also was placed upon the provisions of Section 89(2)(b). The Supreme Court observed that Section 89(2) which incorporated with some variations the provisions found in Section 7 of the Bombay General Clauses Act I of 1904 relating to the operation of provisions which repealed statutes had no relevance in considering the effect of the amendment made by Act 13 of 1956. Section 89(2) in terms protected (save as expressly provided in the Act) right, title, interest, obligation or liability acquired, accrued or incurred, before the commencement of Act 67 of 1948 and it also protected legal proceedings or remedies in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of the 1948 Act The Supreme Court remarked that the appellant did not seek to enforce a right acquired before Act 67 of 1948 was enacted and a suit instituted for a decree for possession of land pursuant to a determination of the tenancy by a notice in 1958 was not a suit in respect of a right or title acquired or accrued before the commencement of the Act of 1948 within the meaning of section 89(2) The alternative contention that by virtue of Section 7 of the Bombay General Clauses Act of 1904 legal proceedings to enforce rights acquired before the amendment of Act 13 of 1956 were saved also was held to have no force The Supreme Court held that the respondent became on the enactment of Act 67 of 1948 entitled as a tenant to diverse rights conferred by that Act. The right to claim that every contractual tenancy was authority extended for a period of ten years, the right to claim that the tenancy might not be determined otherwise than in circumstances mentioned in Section 14 and in case of protected tenants subject to restrictions imposed by Section 34, the right not to be deprived of possession otherwise than by an order under Section 29 (2), where some of those rights vested in the tenant before Act 33 of 1952 was enacted. Those and other rights were restored to the tenants retrospectively from the date on which Act 33 of 1952 was enacted by virtue of the express provision contained in the proviso to Section 43-C. The Legislature having restored the rights originally granted under Act 67 of 1948 with retrospective operation from the date on which Act 33 of 1952 was enacted a person sued, before Act 13 of 1956 was brought into force, could in a pending suit set up the defence that he was entitled to the rights of a tenant or a protected tenant. The Supreme Court, however, held that the order passed by the District Judge dismissing the suit on the ground that the Civil Court had no jurisdiction by reason of the proviso to Section 43-C could not be sustained. It held that the suit was properly entertained by the Civil Court hut since the enactment of Act 13 of 1956 the Civil Court could not try certain issues arising therein as those issues were exclusively triable by virtue of Section 70 of Act 67 of 1948 by the Mamlatdar. The Supreme Court, however, observed that there was nothing in Act 67 of 1948 which prevented continuation of the suit already instituted. In such a suit the issues exclusively triable by the revenue Court by the combined operation of Sections 70 and 85 would have to be tried by the Mamlaldar as a revenue Court and a decree against a tenant might, since the enactment of Act 13 of 1956, not be made by the Civil Court and the proper procedure in such a case was that the Civil Court should refer to the revenue Court all such issues as were triable exclusively by that Court The Civil Court should then pass such decree or order as was consistent with the adjudication of the revenue Court. If the revenue Court was of the view that the relation of landlord and tenant subsisted and the tenancy had been duly terminated in the manner provided by Section 14 or Section 34, if the tenant was a protected tenant it might be necessary to obtain from the revenue Court in an appropriate proceeding an order under Section 29(2). The Supreme Court then held that as a result of the insertion of Section 85-A in the Act whatever might have been the position before Act 13 of 1956, the Legislature had made its intention manifest that if in a suit properly instituted in a Civil Court any issue were to arise which was required to be decided by the revenue Court, such issue should be referred for trial to that Court and the suit should he disposed of in the light of the decision of that Court. The Supreme Court approved the view expressed in the decision of this Court in Kali-charan's case, 1963-4 Guj LR 145 (supra) hlolding that a suit properly instituted in a Civil Court before Act 18 of 1956 was not liable to be dismissed merely because the rights acquired by tenants under Act 67 of 1948 were retrospectively restored. In that view, the Supreme Court held that the finding of the learned District Judge that the CivilCourt had no jurisdiction to hear the suit and his order dismissing the plaintiff's suit on that ground was not accurate, set aside the decree of dismissal passed by the High Court and the District Court and directed the District Court to restore the appeal to its original number and to proceed with that appeal in accordance with law. The Supreme Court thus partly ap-pressed in the decisions in Special Civil Appm. proved and partly disapproved the views ex-No. 105 of 1960 (Guj) and in Kalicharan's case, 1963-4. Gu) LR 145 and therefore to the exlent that the Supreme Court has expressed a contrary view these decisions must be held as not reflecting a correct position in law. Ac cording to the Supreme Court, the view ex-pressed in Kalicharan's case, 1963-4 Guj LR 145 that the Civil Court had jurisdiction to continue to entertain the suit was correct and that there was nothing in the Amendment Act 13 of 1956 which deprived or divested its jurisdiction in a pending litigation. But the Supreme Court has also held that one of the rights of a tenant, namely, the right to have the matter decided under Section 29 of the Act by the Mamlatdar, was preserved by the proviso notwithstanding the enactment of Act 33 of 1952 and therefore the Civil Court would have no jurisdiction to decide issues properly triable by the Mamlatdar and that it was incumbent on the Civil Court to stay the suit and refer such questions to the Mamlatdar and dispose of the suit accordingly. It may be observed that in this appeal the Supreme Court exercising its appellate jurisdiction did examine the various provisions of the Act and decide the question as to the applicability or otherwise of those provisions to the lands involved in the suit. The majority judgment did not accept the view of Mudhol-kar J. that the Supreme Court could not go into the question of the applicability of the provisions of the Act or that as soon as an issue arose which fell within the ambit of Section 70, the suit should be referred to the Mamlatdar Therefore, the Tribunal was in error in confirming the order of the Mamlatdar restoring possession to the tenant and setting aside the order of the Prant Officer on the ground that the Civil Court had no jurisdiction to entertain and try the suit.
9. As stated earlier. according to the Supreme Court decision if the Civil Court finds that the suit before it raises any one or more of the issues to be decided by the Mamlatdar under Section 70 of the Act. it is incumbent upon the Court to stay the suit, refer such question or questions to the Mamlatdar and on receiving the findings of the Mamlatdar to dispose of the suit accordingly If such finding is that the relation of landlord andtenant subsisted between the parties inasmuch as Section 29(2) requires that possession can be obtained by the landlord only under an order of the Mamlatdar, the Court has to dispose of the suit in accordance with the provisions of that Section. If, on the other hand, the finding is that the parties were not in the position of landlord and tenant under the Act. or that the Act did not apply for one or the other reason, the Court would deal with the suit itself and grant or refuse to grant relief according to the merits of the case.
10. What the Civil Court did in the present case was, as its judgment shows, to pass a decree for possession in favour of the petitioners on the ground that as the land in question was situate within the municipal limits of Nadiad, Act 67 of 1948 did not apply and the petitioners were, therefore, entitled to determine the tenancy and obtain possession of the land from the original respondent No. 1. It is true that by that time Act 13 of 1956 had come into force and the learned Judge did not take cognizance of the fact that under the proviso to Section 43-C, as held in Maganbhai's case, 60 Bom LR 1383 (FB) (supra) the protection given to the tenant under the Act notwithstanding Act 33 of 1952 was retrospectively revived. But Maganbhai's case, 60 Bom LR 1383 (FB) (supra) was decided by the Full Bench on July 15, 1958. Since the learned Judge disposed of the suit on September 5, 1956, he did not have the benefit of the judgment of the Full Bench and he appears to have dealt with the suit on the principle that ordinarily a pending litigation would be governed according to the law as it prevailed on the date of the institution of such litigation. In that view, the learned Judge did not take into consideration the effect of the proviso to Section 43-C and held that Section 88(1)(c). as it stood prior to the coming into force of Act 13 of 1956, applied and therefore Act 67 of 1948 did not apply and disposed of the suit accordingly His decision shows that he decided the question as to the applicability of the Act, though, as it turned out later on, he was in error in view of the decision in Maganbhai's case, 60 Bom LR 1383 Bul the question is, can the Mamlatdar or the Revenue Tribunal treat the decree passed by the Civil Court as a nullity and restore possession to the tenant notwithstanding that decree being binding on the parties on the ground that the Court had. by reason of Sections 70 and 85 of the Act, no jurisdiction. As aforesaid, the judgment of the Court shows that what the Court did was to decide that as the land in question fell within the limits of the Nadiad Municipality. Act 67 of 1948 did not apply That of course, was wrong, for the exclusion of such land from the applicability of the Act was retrospectively taken away as if Act 33 of 1952 had never been enacted Nevertheless, what the Court decided was that the land was such that the Tenancy Act did not apply and therefore there was no issue in the suit to which Section 70 would apply and which would be referable- to the Mamlatdar. Sec-lion 86-A which was also inserted in the Act by Section 46 of the Act 13 of 1956 provides that if any suit instituted in a 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 the Act. the Civil Court shall stay the suit and refer such issues to such competent authority for determination As the judgment of the learned Civil Judge shows he raised two issues (1) whether the plaintiff is entitled to recover possession, and (2) what order In dealing with the first issue the learned Judge decided the question whether the Act applied to the land in suit and since he came to the conclusion, though erroneously, that it did not, there was no question triable under Section 70 by the Mamlatdar or referable to him under Section 85-A
11. But the question would still remain whether the Court had. jurisdiction to determine the question regarding the applicability' of the Act to the land in suit In Bhatia Cooperative Housing Society Ltd. v D. C. Patel. 55 Bom LR 199: (AIR 1353 SC 16), the local authority had let certain plots of land to the lessee for erection of a building. Under the lease the lessee was to pay all rates and taxes. not to use or permit to be used without the lessor's consent, the portion of land not built upon except as open land and had covenanted to abide by the other terms provided in tin1 lease The lessee had under the lease the right of sub letting the building erected by him in whole or in part on rent and terms to be fixed by him. of ejecting sub-tenants and of assigning the lease He erected a building at his own expenses and let it out to tenants The plaintiff then acquired the lessee's interest in the demised premises and filed a suit in the Bombay City Civil Court against the defend an 1 who was one of the tenants in the building to vacate his premises, alleging that the Rent Act of 1947 did not apply to demised premises which belonged to the local authority The tenant, on the other hand, contended that under Section 28 of the Rent Act the City Civil Court has no jurisdiction to entertain the suit and that as the premises belonged to the plaintiff and not to the local authority, he was entitled to the protection of the Act The Supreme Court held that the demised premises belonged to the local authority and that the premises therefore were outside the ambil of the Rent Act and therefore the plaintiff's suits was rightly filed in the City Civil Court While dealing with this question, the Supreme Court observed that a Civil Court had inherent power to decide the question of its jurisdiction although as a result of its enquiry it might turn out that it bad no jurisdiction over the suit In Sakha ram v Manekchand. (1956) 57 Bom LR 223, the plaintiff filed a suit in Poona Court for a decree for possession of certain agricultural lands. In the written statement me defendant expressly raised the issue that the Court had no jurisdiction to try the suit in view of the provisions of Act 67 of 1948. The trial Court went into the question of jurisdiction and held that the Civil Court had jurisdiction to try the suit as the lands were situate within the limits of Poona Municipality and that the provisions of Act 67 of 1948 did not apply by reason of Section 88(1) as it then stood. This view was confirmed in an appeal by the defendant before the District Judge. In the second appeal before the High Court, a contention was raised that the defendants were recognised as protected tenants under the Bombay Tenancy Act, 1939 and that their right as such protected tenants was expressly saved by Section 89 of the Act of 1948 and though Section 88(1)(c) excluded those Lands from the applicability of the 1948 Act the defendants were still entitled to set up in the suit their right as protected tenants and to claim the rights which they were entitled to under the 1939 Act This .contention was rejected by the High Court, the High Court holding that a suit by a landlord to recover possession of agricultural lands situate within the limits of a municipal corporation, which lands were excluded from the Act of 1948. could be filed in a Civil Court even though the defendants were to set up a plea that they were protected tenants under the Act of 1939 It follows from this decision also that a Civil Court is competent to deter mine the question as to its own jurisdiction and also to decide that the subject matter of the suit is sitcli that the Act does not applv. This case went in appeal before the Supreme COURT and as seen from the report in Sakha-ram v Manikchand : 2SCR59 , the decision of the High Court was reversed but not on any difference as to the principle that the Civil Court has jurisdiction to enter into the question as to the applicability of the Act. The Supreme Court reversed the decision of the High Court on the ground that the rights of a tenanl, once they were acquired by him under the 1939 Act. were governed by that Act and not by the Act of 1948 But the Supreme Court did not differ from the High Court and did not hold that the Civil Court had no jurisdiction or that the suit ought to have been remitted to the Mamlaldar. Following the decision in Bhatia Co-operative Housing Society Ltd., 55 Bom LR 199' (AIR 1933 SC 16) in Bhikhabhai Jethabhai v Vvas. ILR 1963 Guj 1072 which my brother Bhagwati J. and I decided we also held that if a question arose whether Section 85 of Act 67 of 1948 applied or not, the Civil Court would have jurisdiction to decide that question. But if the Civil Court held that Section 85 applied then the Mamlatdar alone would have jurisdiction to decide the further question arising in the Civil Court, namely, whether a person was a tenant or not. We also held that it would be the Civil Court which would have the jurisdiction to decide whether Section 85 of the Tenancy Act applied or not In this decision we clearly made a distinction between the question as to the applicability of the Tenancy Act either to a class of persons or a class of lands on the one hand and the question whether a person is a tenant or not within the meaning of the Act and we held that so far as the question as to the applicability of the Act was concerned the Civil Court would have jurisdiction to decide that question. But once the Court found that the Act applied, the question whether the party claiming to he a tenant was a tenant or not must be referred to the Mamlatdar as it is the Mamlatdar as the competent authority who has the exclusive jurisdiction to try that question under Section 70 of the Act. A similar question also arose before Mehta J. in Jawa-herlal Gulabchand v. Surat Dairy Company Ltd. ILR 1964 Guj 775. The applicants were the owners of certain lands situate in Chorashi Taluka. On February 1, 1943 a lease was executed between the applicants and the Dairy Company through its managing agents for a period of ten years from February 1, 1943 to May 30, 1953 on an annual rent of Rs. 600/ -When the lease was about to expire, the applicants by a notice dated May 6, 1953 required the opponents to quit and hand over possession and since that was not done the applicants filed a tenancy suit for obtaining possession. That suit was dismissed on the ground that the notice was invalid. An appeal against that decision was also dismissed by the Prant Officer on the ground that the first opponent being a commercial undertaking, the proceedings did not lie in the tenancy court in view of Section 88(l)(c) of the Act. The applicants thereupon filed a suit in the Court of the learned Civil Judge. Junior Division for possession of the suit lands against the opponents. The contention of the applicants WAS that they were tenants of the suit property under the Act of 1948 and the Court, therefore, had no jurisdiction to hear the suit. Some of the defendants also raised a contention 'that they were a co-operative farming society, that the dairy had joined fhe suit lands with the land of defendant No. 4 and defendants 4 and 5 were therefore in lawful possession of the same. The plaintiff's contention on the other hand was that the first defendant was a commercial and industrial undertaking and therefore under Section 88(1)(c) the provisions of the Act were not applicable. The trial Court referred the question whether the first defendant was a tenant under the Act to the Mamlatdar and it was against that order of reference that the applicants filed a revision application. One of the two questions framed by the learned Judge for his determination was whether the Civil Court had failed to exercise its jurisdiction by not deciding the first question whether Sections 70. 85 and 85-A applied to the case before referring to the Mamlatdar the question whether the first defendant was a tenant The learned Judge after considering various decisions cited before him followed the decision in Bhikhabhai Jethabhai's case IL.R (1963) Guj 1072 (supra) and answered the question in the affirmative and allowed the revision The learned Judge held that when the Legislature invested the Mamlatdar with jurisdiction to determine the question as to whether a person was a tenant or not it must be deemed to have empowered him to decide all the ingredients of that definition including the fact whether a person held the land for agricultural purpose or otherwise as a fact in issue. Therefore, although there was no express bar in Sections 70 and 85 against the Civil Court deciding the question whether the land was used for agricultural purposes or otherwise, the jurisdiction of the Civil Court to decide this question must be held to be impliedly barred. The learned Judge, however, observed that it was not as if every question which arose about the applicability of the Tenancy Act would be a question within the exclusive jurisdiction of the Mamlatdar. If. however, the question as to the applicability of the Act depended only on the determination of the question whether the land was used for agricultural purposes and if the question were to arise as an integral part of the questions whether a person was a tenant or not, the jurisdiction of the Civil Court to decide the question would be impliedly barred. But he also observed that prima farie the question whether the suit lands or the tenancy in question were exempted under Section 88(l)(c) or not would be within the jurisdiction of the Civil Court Unless the question was excluded from its jurisdiction either expressly or by nccessarv implication, a Civil Court has jurisdiction to decide the question whether the Tenancy Act applied to the suit lands, or the tenancy in question This inherent power to decide its own jurisdiction existed in the court even though on enquiry it might turn out that the Civil Court had no jurisdiction over the suit land or the tenancy in question. Therefore, even where the land was used for agricultural purposes if a contention was raised that the land was exempt from the provisions of the Tenancy Act as it was held on lease for the benefit of a commercial or an industrial undertaking, that question which was raised before the Civil Court independently from the question of tenancy had to be examined and considered by the Civil Court distinctly from the question of tenancy A question whether agricultural land was held on lease for the benefit of an industrial or commercial undertaking would involve the question about the applicability of the Tenancy Act and it would be a collateral question totally distinct from the question whether a person was a tenant or not. It would be only after a Civil Court has held in the first instance that the suit lands were not exempted that the further question would arise whether the person was a tenant or not which was squired to be referred to the tenancy court We are in agreement with these observations. for in our view the question as to the applicability of the Act is neither co related to nor is it incidental to the question whether a party to a suit is a tenant or not The first question relates to the jurisdiction of the Court and it is only when that question is first determined and the Act is held to be applicable to the class of land in question that the question of referring to theMamlatdar the issue whether the person concerned is a tenant or not can arise. If the Act does not apply to the subject matter of the suit, no question of the person being a tenant or not can possibly arise and there would he no question which would be referable to the Mamlatdar.
12. But our attention was drawn to the decision in Harshadrai Raghunathji v. Balu-bhai, 59 Bom Lit 1036: (AIR 1858 Bom 62), where Dixii and Tendolkar JJ have made certain observations which are said to be contrary to what we have stated earlier. The question there was whether the issue whether the land in question was used for agricultural purposes or for a purpose mentioned in Section 88(1)(c) of Act 67 of 1948 was a question which could be exclusively determined by the Mamlatdar and therefore a Civil Court had , no jurisdiction to try that issue. The applicant there filed a civil suit in the Court of the Civil Judge, Junior Division, Navsari to recover possession of a field situate in Navsari Taluka in Surat District. The applicant's case was that opponent No. I was a trespasser. The trial Court gave the applicant a decree for possession The learned Assistant Judge who heard the appeal however directed opponent No. 1 to Ret decided two points: (1) whether the disputed land was agricultural land and (2) whether opponent No. 1 was a protected tenant or not Accordingly the first opponent filed an application before the Mamlatdar The applicant filed a written statement raising various contentions one of which was that in view of Section 88(1)(b) the Mamlatdar had no jurisdiction to decide the question whether the suit land was leased out for an industrial or commercial undertaking. The Mamlatdar upon evidence before him decided the application in favour of the first opponent The matter was then taken before the Assistant Collector who held that the Mamlatdar had no jurisdiction to decide the question whether the first opponent was a tenant of the suit land in a revision before the Revenue Tribunal, the Tribunal reversed the order of the Assistant Collector and remanded the case to him with a direction that he should dispose of the matter in accordance with taw The applicant feeling aggrieved by that order filed a special civil application and the question was whether the Mamlatdar had jurisdiction to decide the question which he had decided, namely whether the land in question fell within the ambit of Section 88(1)(b). The Division Bench considered a decision of Shah J. sitting singly in Ramdas v. Rambhai Patel, C. R A 72 of 1955 decided on September 4, 1956 (Bom), where Shah J. had held that the jurisdiction to deride whether the provisions of the Tenancy Act applied to a particular piece of, land was not expressly or by implication conferred on the Mamlatdar and that in the absence of any such provision which enabled the Mamlatdar to conclusively determine whether any particular land was held on lease for the benefit of an industrial or commercial undertaking andnot governed by the provisions of the Act, the jurisdiction of the Civil Court was not excluded in that behalf. Shah J. had also held that in so far as the jurisdiction of the Civil Court was excluded by the Act, the provisions of the Act must be strictly construed and there being nothing in the provisions of the Act which either expressly provided or on clear implication showed that it was within the competence of the Mamlatdar to decide whether the land was held on lease for the benefit of an industrial or commercial undertaking the Civil Court was the only forum competent to decide whether the land was held on lease for the benefit of an industrial or commercial undertaking and therefore exempt from the operation of the Act of 1948. This decision was overruled by the Division Bench on the ground that Shah J. had overlooked the definitions of the expressions 'tenant' and 'land' in Section 2(18) and Section 2(8). The Division Bench held that if in order to decide the question whether an occupant was a tenant within the meaning of the Act of 1948, it was necessary to decide the question whether the lands in his possession were used for an agricultural purpose or for a purpose mentioned in Section 88(1)(b) of the Act, it was a question which the Mamlatdar had the power to decide and the Civil Court was debarred from deciding such a question. The Division Bench also held that it was inherent in the powers of the Mamlatdar to decide and determine matters which were specifically enumerated in Section 70 of the Act that he should have the power to determine in the first instance whether the Act applied to the land in question and to the extent to which it became necessary for him to determine for the purpose of deciding any question under Section 70 whether the land fell within any of the categories of land enumerated in Section 88, he had implied jurisdiction to do so and the jurisdiction of the Civil Court in that regard was ousted Tendolkar J who delivered a separate though concurrent judgment observed that it was a well recognised principle of construction of statutes that where a Court is dealing with a benevolent legislation the Court ought to interpret the Act so as to prevent the mischief and to promote the remedy The Act of 1948 was a beneficent piece of legislation and apparently the object of the Legislature in setting up special tribunals to decide questions arising under the Act was to provide the tenant with what they considered would be a speedier and less expensive remedy than litigation in a Civil Court. Reading the two judgments if is manifest that Tendolkar J. went very much further than Dixit J. who limited his observations on the ground that the question whether the land was used for an agricultural purpose was so integrally connected with the question as to the applicant being a tenant that the latter question could not be decided by the Mamlatdar without the former being decided and that unless it was held that the Mamlatdar had implied jurisdiction to decide the former, the provisions of Section 70 would become futile. But these observations cannot possibly mean that the question as to the applicability of the Act is co-related or integrally connected with the question whether the first opponent was a tenant or not. That, in our view, is a different and a distinct question unconnected with the question as to whether the person claiming to be a tenant is one or not. It may be that a benevolent piece of legislation should be given a beneficent interpretation so as to foster the remedy sought to be provided for by such legislation. But it would be going too far, in our view, to say that Section 70 which does not include, either expressly or by necessary implication the question as to the applicability of the Act, must be held to be impliedly included. In that case the question was whether the Mamlatdar had inherent jurisdiction to decide the question as to his jurisdiction and Tendolkar J. observed that he had on the same principle which has been enunciated by the Supreme Court in Bhatia Co-operative Housing Society's case : 4SCR185 . But that principle would equally apply to the Civil Court also when the question as to its jurisdiction comes to be decided by it. It is of interest to note that the decision in Harshad-rai Raghunathji Desai's case : AIR1958Bom62 has been referred to hy another Division Bench of the same High Court in Bhikanrao Fakirrao v. Supadu Soni, C. R. A 120 of 1957 decided on December 20, 1957 (Bom) by Chainani J. as he then was, and Patel J. It appears from the judgment in this application that though the decision in the case of Harshadrai Desai : AIR1958Bom62 was pointed out to them, the learned Judges preferred to follow other decisions of the High Court. namely, Prithviraj v. Hari Ganesh, 56 Bom LR 1076 and 57 Bom LR 223 (supra) where it was held that the question as to the applicability of the Act was within the competence of the Civil Court. In C. R. A. 120 of 1957 (Bom) the High Court was concerned with the same question which has arisen be fore us, namely, the effect of the Amendment Act 13 of 1956 on a pending litigation, and Chainani and Patel JJ. held that the Civil Court had jurisdiction to decide the question whether the Amendment Act 13 of 1956 applied to pending proceedings and its jurisdiction was not ousted merely because it would have no power to decide the question about the defendant being a tenant or not in case Act 13 of 1956 was held to be applicable. Thus barring the observations made in the case of Harshadrai Desai : AIR1958Bom62 , which decision has been followed in this Court by Miabhoy and Mody JJ. in First Appeal No. 1009 of 1960 decided on February 5. 1963 (Guj), the bulk of opinion in the High Court of Bombay as also in this Court has been that the question of the applicability of the Tenancy Act is R separate question not connected with the question which the Mamlatdar under Section 70 would have to decide and therefore not falling either expressly or by necessary implication within the ambit of matters set out in Section 70. That being so, it would not be possible to sustain the argument of Mr. Desai which was principally based upon the decision in Harshadrai Desai's case : AIR1958Bom62 that the jurisdiction to decide the question as to the applicability of the Act would also fall under Section 70 and the jurisdiction of the Civil Court to decide such a question was barred in consequence under Section 85 of the Act.
13. Mr. Desai contended, however, that under Section 29(2) it was only under an order of the Mamlatdar that a tenant could be deprived of possession and that since the original respondent No. 1 was deprived of his possession by an order of the Court and not under that of the Mamlatdar, the tenant could file an application under Section 29(1) at anytime notwithstanding a binding decree having been passed a gains I him and the Mamlatdar then could consider such an application and pass an order restoring possession to the ten-ant on the ground that the tenant was dispossessed without an order of the Mamlatdar. This, no doubt, can be done by the Mamlatdar on the footing that the Tenancy Act applied. But as already stated, the learned Judge passed the decree after considering the question as to the applicability of the Act and having come to the conclusion that the Tenancy Act did not apply to the land in question. So long as that decree stood and was not set aside by a competent Court, the decree must be held to be a binding decree We do not find anything in the provisions of Section 70 empowering the Mamlatdar to treat that decree as one without jurisdiction and to set it aside.
14. As we have held already, the learned Judge was entitled to go into the question as to the applicability of the Act and decide the suit once he came to the conclusion that the Tenancy Act did not apply to the land in question. Neither the Mamlatdar, nor the Tribunal in such a situation could possibly hold that the decree was a nullity and treat it as if it did not exist. As stated in Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621, whenever a judicial or a quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. The question whether the tribunal had jurisdiction depends not on the truth or falsehood of the facts into which it had to enquire, or upon the correctness of the findings on those facts, but upon their nature A tribunal might lack jurisdiction if it was improperly constituted or if it failed to observe certain essential preliminaries to the enquiry. But it would not exceed its jurisdiction by basing its decision upon an incorrectdetermination of any question that it was empowered or required (i.e. had jurisdiction) to determine. The jurisdiction of an inferior tribunal might depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact would be collateral to the actual matter which the tribunal had to try and the determination whether it existed or not was logically prior to the determination of the actual question which the tribunal had to try. The tribunal must itself decide as to the collateral fact. When at the inception of an enquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction the tribunal has to make up its mind whether it would act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction, and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Since the Civil Court had, as held by us, jurisdiction to entertain the suit as now held by the Supreme Court in : 1SCR367 (supra) and since the Civil Court had also the jurisdiction to try the issue whether Act 13 of 1956 applied, though it wrongly determined that question, that determination was valid and binding on the parties so long as it was not set aside by a competent court of law. The conclusion of the Mamlatdar as also the Tribunal that the decree was without jurisdiction and was therefore a nullitv was therefore clearly erroneous The original respondent No. 1 could have appealed against that decree and got a verdict from an appellate Court that that decree was based on an erroneous view of S 43-C and its proviso as inserted by Amendment Act 13 of 1956. But the tenant allowed that decree to become final by failing to agitate against it in an appellate Court and allowed even the execution proceedings to be finalised. Since the Court had jurisdiction to decide whether Act 67 of 1948 applied or not and the Court came to the conclusion, though erroneously, that the suit was governed by the Act as it stood at the date of its inception and not as amended by Act 13 of 1956 the Tribunal could not say that the Court had acted without jurisdiction and that therefore the decree was a nullity However erroneous that decree was, since it was passed with jurisdiction it was binding upon the parties subject only to its being reversed or set aside by the appellate Court.
15. For the reasons aforesaid, we set aside the order passed by the Revenue Tribunal and restore the order passed by the Prant Officer . As regards the order of costs, in view of the conflicting decisions both in this Court as also in the High Court of Bombay, it is fairthat there should be no order as to costs and that each party should bear his own costs.