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Patel Ramanbhai Mathurbhai and anr. Vs. Solanki Shanabhai Naranbhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 708 of 1978
Judge
Reported inAIR1983Guj198; (1983)1GLR743
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 74 and 80-A; Bombay Lands Revenue Code, 1879 - Sections 74, 74(1), 74(2), 76, 203 to 212; Advocates Act, 1961 - Sections 29; Constitution of India - Articles 226 and 227; Code of Civil Procedure (CPC), 1908 - Order 3, Rule 2; Powers of Attorney Act, 1982 - Sections 2
AppellantPatel Ramanbhai Mathurbhai and anr.
RespondentSolanki Shanabhai Naranbhai
Appellant Advocate J.M. Patel, Adv.
Respondent Advocate N.J. Shelat, Adv.
DispositionPetition allowed
Excerpt:
.....to the effect that special power of attorney holder cannot appear and argue appeal on behalf of appellant - respondent could not point out any statutory provisions under which petitioner cannot be permitted to appear through their duly recognised agent to get their appeal argued by agent of their choice - tribunal's decision reflects error of law and jurisdiction. - - as stated earlier, the tribunal endorsed the view of the deputy collector and dismissed the revision application. it is now well settled that a power of attorney can also be for a limited purpose and in that case, it is styled as special power of attorney. 8. in order to appreciate the short controversy between the parties in the present proceedings, it is necessary to clearly decipher its contours. consequently, it..........lands act, 1948 (hereinafter referred to as 'the act'), has confirmed the view expressed by the deputy collector, anand, in tenancy appeal no. 219 of 1976 to the effect that a special power of attorney bolder cannot appear art argue the appeal on behalf of theappellants. a few relevant facts centering round the aforesaid limited controversy between the parties may be noted.2. the petitioners claim to be owners and occupants of the land bearing survey numbers 535/7 admeasuring 0 acre -- 17 gunthas and 535/14, admeasuring 0 acre -- 8 gunthas situated on the outskirts of village lingada in anand taluka of kheda district. the respondent claims to be the tenant thereof. the mamlatdar and a.l.t. anand initiated proceedings under section 32(1-b) of the act and by his order dated 20-8-1976.....
Judgment:
ORDER

S.B. Majmudar, J.

In this petition under Art. 226 of the Constitution which is in substance a petition under Article 227 thereof, the petitioners challenge an order passed by the Gujarat Revenue Tribunal in application No. TEN. B.A. No. 642 of 1977, whereby the Tribunal exercising powers under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'), has confirmed the view expressed by the Deputy Collector, Anand, in tenancy appeal No. 219 of 1976 to the effect that a special power of attorney bolder cannot appear art argue the appeal on behalf of theappellants. A few relevant facts centering round the aforesaid limited controversy between the parties may be noted.

2. The petitioners claim to be owners and occupants of the land bearing survey numbers 535/7 admeasuring 0 acre -- 17 gunthas and 535/14, admeasuring 0 acre -- 8 gunthas situated on the outskirts of village Lingada in Anand taluka of Kheda district. The respondent claims to be the tenant thereof. The Mamlatdar and A.L.T. Anand initiated proceedings under Section 32(1-B) of the Act and by his order dated 20-8-1976 held that the respondent is entitled to restoration of possession of the disputed lands from the petitioners.

3. The petitioners naturally felt aggrieved by the aforesaid order of the Mamlatdar. They preferred tenancy appeal No. 219 of 1976 before the Deputy Collector under Section 74 of the Act. According to the petitioners, they were not conversant with the facts and law and hence, they took assistance of one Ramanlal Chotalal Bhatt in whose favour they executed a special power of attorney on 30-8-1976. Under the said special power of attorney, Mr. Bhatt was permitted to appear and take all proceedings in tenancy appeal before the Deputy Collector on behalf of the petitioners. The said special power of attorney holder was not a legal practitioner. A copy of the special power of attorney is annexed to this petition at Annexure 'A'.

4. On the date of hearing of the appeal, the said power of attorney holder appeared on behalf of the petitioners-appellants while Mr. Fulsinh Dabhi, learned Advocate appeared on behalf of the respondent. The said advocate of the respondent raised a preliminary objection before the Deputy Collector that the power of attorney holder of the petitioners was not legally entitled to represent the case of the petitioners and argue the appeal before the Deputy Collector. On this preliminary contention, the Deputy Collector heard both the sides and by his order dated 23-6-1977 upheld the objection raised on behalf of the respondent by his learned Advocate and held that in tenancy Court, a particular power of attorney holder cannot appear on behalf of parties. That resulted in a revision application on behalf of the petitioners before the Gujarat Revenue Tribunal invoking its powers under Section 76 of the Act. As stated earlier, the Tribunal endorsed the view of the Deputy Collector and dismissed the revision application. That is how, the petitioners have tended in this Court.

5. Mr. J.M. Patel, learned Advocate for the petitioners submits that the Tribunal had patently erred in law in not appreciating the fact that in appeals before the tenancy authorities under Section 74 of the Tenancy Act, procedure of the Land Revenue Code had to be followed and that the Land Revenue Code nowhere laid down any restriction on the power of attorney holder of parties in appearing and in arguing the appeals. Mr. Patel next submitted that under Order 3, Rule 2 of the Civil P. C,, recognised agents have been permitted to appear, apply and act on behalf of the principal. But even that provision will strictly not apply to tenancy appeals under the Act and consequently, the decision of the Bombay High Court on the applicability of Order 3, Rule 2 of Civil P. C. also cannot be pressed in service. Mr. Patel next con-tended that reference to Section 29 of the Advocates Act, 1961 is equally misconceived as the said provision would cover professional practitioners of law and that it is not the case of the petitioners that his special power of attorney bolder is a professional practitioner of law. Mr. Patel next contended that Section 80A of the Act is equally out of picture as the special power of attorney holder is not a pleader. Consequently, no question of taking permission of the Collector under Section 80A arises in the present case.

6. Mr. Patel also invited my attention to the Powers of Attorney Act (Act 7/1982). As per Section 2 of the said Act, 'the donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by authority of the donor of the power and every assurance, instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the do not thereof. It is now well settled that a power of attorney can also be for a limited purpose and in that case, it is styled as special power of attorney. In the present case, the special power of attorney has been executed by the petitioners in favour of Mr. R.C. Bhatt. Mr. Patel invited my attention to Appendix I to the said Act wherein form No. 6 provides for various clauses giving different kinds of attorney and the clause pertaining to power to sue or be sued lays down as under:--

'To accept service of any legal process in my name on my behalf and to appear on my behalf in any Court or tribunal and there to

commence and prosecute or enter an appearance to and defend any action, claim or proceeding as he may think fit.' It is, therefore, obvious that unless prohibited by any specific provision of law, a special power of attorney holder would be entitled to appear on behalf of the principal before any Court or Tribunal. The tenancy authorities exercising appellate jurisdiction under Section 74 of the Act have all the trappings of a Court as they decide lis between parties in a judicial manner. The appellate proceedings before them are governed by the relevant provisions of the Bombay Land Revenue Code. Consequently, it cannot be said even for a moment that the special power of attorney of the petitioners was not entitled to appear and argue the appeal before the appellate authority exercising power under Section 74 of the Act. Mr. Patel contended that the Tribunal's decision exhibits a patent error of law and requires interference in the interest of justice.

7. Mrs. Shelat, learned Advocate for the respondent on the other hand tried to support the conclusion reached by the Tribunal on the point.

8. In order to appreciate the short controversy between the parties in the present proceedings, it is necessary to clearly decipher its contours. The question posed for my consideration is a limited one as to whether in tenancy appeals filed under Section 74 of the Act, the concerned parties can be represented by their special power of attorney holder and can argue in the appeals for their respective principals, either appellants or respondents, as the case may be. In the present case, the petitioners were the appellants before the Deputy Collector in tenancy appeal. In order to decide the locus standi of the special power of attorney of the petitioners-appellants before the Deputy Collector, it will be necessary to have a look at the relevant statutory provisions with a view to delimiting the scope and ambit of the appellate proceedings under the Act. Section 74(1) of the Act provides that an appeal against the order of the Mamlatdar and the Tribunal may be filed to the Collector in the cases mentioned at various Clauses (a) to (w) in the said Sub-section. Thereafter follows material provision of Sub-section (2) of Section 74 which requires to be extracted in extenso as under:

'(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.'

It is, therefore, obvious that the Collector hearing tenancy appeals under Section 74 of the Act will have to follow the procedure of Chapter XIII of the Bombay Land Revenue Code. Chapter XIII consists of Sections 203 to 212. Section 203 provides that an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior. Section 204 deals with appeal which may lie to the State Government. Section 205 prescribes period of limitation within which such appeals can be brought. Section 206 empowers the appellate authority to admit appeals after period of limitation on sufficient cause being shown by the concerned appellant why he could not file the appeal in time. Section 207 deals with a situation where last date of limitation for filing appeal falls on Sunday or holiday. Section 208 prescribes the nature of accompaniments to the memo of appeal and lays down that authenticated copy of the decision under appeal is to accompany the memo of appeal. Then follows Section 209 which deals with powers of the appellate authority and enjoins upon the appellate authority to record reasons in writing for its decision either annulling, modifying, reversing or confirming the decision or order under challenge. Section 210 provides for power of the appellate authority to suspend execution of the order of subordinate Courts pending hearing of the appeal. Section 211 provides for revisional powers of the State Government or superior revenue officers in cases contemplated by the said section. Section 212 which is the last section in Chapter VIII lays down a rule about interpretation of finality of the decision or order of revenue officers and states that whenever in this Act, it is declared that a decision or order shall be final, such expression shall be deemed to mean that no appeal lies from such decision or order. It is, therefore, obvious that none of the aforesaid sections in Chapter XIII of the Land Revenue Code prescribes any procedure according to which the appeals are to be heard by the tenancy authorities nor does any of these section prohibit special power of attorney of the party from appearing and pleading the case of his principal. It is necessary to note at this stage that provisions of Order 3, Rule 2 of Civil P.C. which deal with recognised agents and pleaders also can-not be pressed in service while considering

the question as to whether tenancy authorities hearing tenancy appeals under Section 74 of the Act can be addressed by recognised agents mentioned in Order 3, Rule 2 of Civil P. C. Consequently, any judicial interpretation of the scope and ambit of Order 3, Rule 2 of Civil P. C. cannot ipso facto be made applicable to appellate proceedings under the Act. Section 80A of the Act would also get excluded for the simple reason that special power of attorney holder of the petitioners who is not a professional pleader is not covered by the express language of Section 80A of the Act which lays down that 'notwithstanding anything contained in this Act or any law for the time being in force, no pleader shall be entitled to appear on behalf of any party in any proceedings under this Act before the Mamlatdar, the Tribunal or the Collector;

Provided that the Mamlatdar, the Tribunal or the Collector may, in the interest of justice for reasons to be recorded in writing, allow the parties to be represented at their own cost by a pleader'.

Mr. Patel is also right when he contends that the reliance placed by the Tribunal on Section 29 of the Advocates Act, 1961 cannot, in the facts of the present case, help the respondent for the simple reason that the special power of attorney holder of the petitioner does not claim to be an advocate who is practising profession of law before any Court including the Court of tenancy appellate authority. It is, therefore, obvious that in absence of any specific provision in Chapter XIII of the Land Revenue Code as read with Section 74(2) of the Act excluding agents of the parties duly appointed to appear and make their submissions on behalf of their principles before the appellate authority, the Deputy Collector exercising powers under Section 74 of the Act could not have prevented the petitioner's special power of attorney holder from appearing and submitting his arguments in support of the appeal on behalf of his principals that is the appellants-petitioners. It cannot be gainsaid that Mr. R.C. Bhatt was a special power of attorney holder on behalf of the petitioners. His power flew from the special power of attorney which has been annexed at Annexure 'A' to the petition. It in terms states that the petitioners have entrusted to Mr. Bhatt the task of conducting tenancy appeal with respect to the disputed lands before the District Deputy Collector Anand. It is nobody's contention that such special power of attorney is contrary to any provisions of law. In the absence of such contention, it must be held

that the petitioners had duly authorised their recognised agent Mr. R.C. Bhatt to appeal and plead on their behalf before the Deputy Collector, Anand in the tenancy appeal in question. If the petitioners themselves as appellants and as parties in person had appeared before the District Deputy Collector to argue their appeal in person, it is obvious feat the District Deputy Collector could not have prevented them from doing so. If that is so, it must logically follow that their duly authorised agent for that very purpose could not have been prevented by the Deputy Collector from arguing the appeal on behalf of their principals viz. the petitioners especially when there is no such prohibition flowing from any other provisions of any law for the time being in force.

9. Mr. Shelat for the respondent could not point out any statutory provisions under which the petitioners cannot be permitted to appear through their duly recognised agent to get their appeal argued by such agent of their choice. Consequently, it must be held that the Deputy Collector had failed to exercise his jurisdiction and had committed a grave error of law in holding the preliminary objection raised on behalf of the respondent's advocate Mr. Dabhi and in preventing the petitioners' special power of attorney holder from appearing and arguing the appeal on behalf of the petitioners. Equally, the Tribunal was in error in endorsing such legally untenable stand taken by the District Deputy Collector and the Tribunals decision reflects similar error of law and jurisdiction.

10. In the result, this petition is allowed. The impugned order of the Tribunal at Annexure 'C' and the order on preliminary issue as passed by the Deputy Collector, Anand at Annexure 'B' are quashed and set aside. The Deputy Collector, Anand is directed to permit the petitioner's special power of attorney bolder Mr. R.C. Bhatt to appear and argue on behalf of the petitioners-appellants their tenancy appeal No. 219 of 1976 and thereafter the District Deputy Collector shall decide the appeal in accordance with law. Rule is accordingly made absolute. In the facts and circumstances of the case, there will be no order as to costs.


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