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Chhanuben Vs. Manubhai Prabhudas Acharya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1075 of 1974
Judge
Reported inAIR1976Guj62; (1975)GLR712
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 23-A
AppellantChhanuben
RespondentManubhai Prabhudas Acharya
Appellant Advocate K.C. Shah, Adv.
Respondent Advocate Champaklal Ratilal Vyas, Adv.
Cases ReferredKeshav v. Jairam
Excerpt:
tenancy - interpretation - section 23-a of bombay rents, hotel and lodging house rates control act, 1947 - meaning of term collector - deputy collector issued order which should have been issued by collector - petitioner challenged order on ground of absence of power - term collector no where defined in act - held, power vested in collector can be exercised by deputy collector. - - the division bench has clearly expressed its view that there was no limitation on the nature of power in respect of questions arising under other law for the time being in force......in possession of the opponent belonging to the petitioner-landlord. on 28th december. 1972. the deputy collector. baroda issued a notice to the petitioner in the matter. the petitioner filed his reply objecting to the right of the opponent herein to have electrical connection. contending. inter alia that the deputy collector had no jurisdiction to grant permission sought for. the deputy collector. after hearing the parties. rejected the contention as to his competency under section 23-a of the aforesaid act and also rejected all the objections on merits and ordered that the opponent herein will be entitled to have electrical connection in the premises occupied by him at his expenses. it is this order which is the subject-matter of this petition before me.3. the only contention which.....
Judgment:
ORDER

1. A short question which arises in this petition is. whether the order of the Deputy Collector. Baroda under Section 23-A of the Bombay Rents Hotel and Lodging House Rates control Act. 1947. permitting the opponent herein to have electric connection in the premises belonging to the petitioner herein is a legal order. The question arises in the following circumstances:

2. The opponent herein filed an application before the Collector. Baroda under Section 23-A of the Bombay Rent Act for obtaining permission for having electrical installation in the premises in possession of the opponent belonging to the petitioner-landlord. on 28th December. 1972. The Deputy Collector. Baroda issued a notice to the petitioner in the matter. The petitioner filed his reply objecting to the right of the opponent herein to have electrical connection. contending. inter alia that the Deputy Collector had no jurisdiction to grant permission sought for. The Deputy Collector. after hearing the parties. rejected the contention as to his competency under Section 23-A of the aforesaid Act and also rejected all the objections on merits and ordered that the opponent herein will be entitled to have electrical connection in the premises occupied by him at his expenses. It is this order which is the subject-matter of this petition before me.

3. The only contention which has been pressed into service by Mr. Shah the learned Advocate. appearing on behalf of the petitioner. is that the Deputy Collector who heard the matter and decided the matter had no right. authority or jurisdiction to grant permission under Section 23-A of the said Act. inasmuch as the competent authority to grant such permission. according to the said section. is. the Collector. who being a persona designata. is alone entitled to give permission which was sought for and the authority who in this case granted permission was merely Deputy Collector. therefore. could not have acted for the Collector under Section 23-A of the said Act, In order to appreciate this contention of Mr. Shah. it would be profitable to refer to a few relevant provisions on this point. Section 23-A is a new section which has been recently introduced in the Bombay Rents. Hotel and Lodging House Rates Control Act. 1947 as applicable in the State of Gujarat. It provides the circumstances where the tenants are entitled 5 6 to the supply of electricity at their costs Section 23-A reads as under:

'23-A. (1) When a tenant desires to get supply of electricity at his own cost from a licensee within the meaning of the Indian Electricity Act. 1910 and the owner of the premises does not give his consent therefore the tenant may apply to the Collector setting, out the scheme for such supply.

(2) On receipt of such application the Collector may. after giving the landlord and the owner of the premises if he be not the landlord. opportunity of being heard permit the tenant to get the supply in accordance with the scheme set out in the tenant's application or in accordance with any modified scheme.

(3) On such permission being given. notwithstanding anything contained in any contract or in any other law for the time being in force. the owner shall be deemed to have given the requisite consent under sub-section (2) of Section 12 of the Indian Electricity Act 1910 and the licensee shall not be liable, to the owner for trespass for steps taken for supply of electricity according to the said permission.'

The Bombay Rent Control Act, 1947 hag not defined the term. 'Collector'. and. therefore. the definition given by the term 'Collector'. in the Bombay General Clauses Act. 1904 would have a bearing on the question. According to S. 3 (11) of the Bombay General Clauses Act. 1904. the term. 'Collector' is defined as to mean. 'the Chief Officer incharge of the revenue administration of a district'. Mr. Shah therefore. urged before me that as the competent authority to grant permission under S. 23-A is the Collector. he alone is entitled to give such permission and no other officer who is not in the charge of the revenue administration of the district can exercise his functions as a delegate al the Collector or on behalf of the Collector.

4. In my opinion. Mr. Shah in making this submission. has lost sight a Section 10. Paragraph (2) of the Bombay Land Revenue Code. It is no doubt true that under Section 23-A of the Bombay Rent Act. 1947. the competent authority to grant permission in question to the tenant for purposes of obtaining electrical supply in the premises occupied by him is the Collector. It is also true that there is no definition of the term. 'Collector' in the Rent Act. and therefore. we have to consider how the term is defined in the Bombay General Clauses Act. According to Section 3(11) of the Bombay General Clauses Act. the Chief Officer in charge of the revenue administration of the district is a 'Collector'. It is also true that the Deputy Collector or the Assistant Collector for that matter is not in the charge of the revenue administration of the entire district. However, Section 10 of the Bombay Land Revenue Code enumerates powers and duties of the Assistant Collectors and Deputy Collectors. Section 10 so far as relevant for our purposes provides as under:

'10. Subject to the general orders of (the State Government) a Collector may place any of his assistants or deputies in charge of the revenue administration of one or more of the talukas in his district. or may himself retain charge thereof.

Any Assistant or Deputy Collector thus placed in charge shall. subject to the provisions of Chapter XIII................... perform all the duties and exercise all the powers conferred upon a Collector ......... by this Act or any other law at the time being in force. so far as regards the taluka or talukas in his charge.'

It is, therefore. clear to me that if a Deputy Collector or for that matter an Assistant Collector is placed in charge of one or more Talukas in the district then in view of the provisions of Section 10 of Bombay Land Revenue Code the officer concerned can perform all the duties and exercise powers conferred upon a Collector either by the Land Revenue Code or by any other law for the time being in force in respect of the matters arising in the Taluka or Talukas in his charge. Mr. Shah strenuously urged before me that the definition given in the Bombay Land Revenue Code cannot be considered or looked into for purposes of determining who is the competent authority to give permission as required under Section 23-A of the Rent Act and in submission of Mr. Shah. it is on1y the Collector as defined under the Bombay General Clauses Act who can give such a permission. inasmuch as, he is a persona designata under the said Section for purposes of giving necessary permission and no other officer or authority can be entrusted or delegated with that power which the Collector alone has to exercise under Section 23-A. I have not been able to appreciate how Mr. Shah contends. in spite of the clear provision being made in Para. 2 of Section 10 of the Bombay Land Revenue Code. where the Assistant or Deputy Collector placed in charge of Taluka or Talukas have been empowered to perform all the duties and exercise all the powers conferred upon a Collector either by the Land Revenue Code or by any other law for the time being in force. that the Deputy Collector is not the competent authority to give such a permission, when an Assistant Collector or a Deputy Collector so exercises the powers or performs the duties they do the same as Collectors. If that is so. the entire reasoning of Mr. Shah that because Section 23-A designates the Collector as the competent authority no other officer can exercise that power should be rejected.

5. A similar question arose before the Division Bench of the Bombay High Court in Vishnu Dadu Lokhande v. Umabai : (1955)57BOMLR816 . The facts in that case were that certain lands in Karad Taluka which belonged to one Vishwanath, after his death in February. 1948. devolved upon his widow Umabai-respondent-plaintiff before the Court. The lands were in the occupation of one Vishnu as a tenant and on February 3. 1947 Vishwanath had served a notice upon the defendant terminating the tenancy as from March 31. 1948 on the ground that the lands were required for personal cultivation. As the appellant-defendant refused to comply with the demand made in the notice. the respondent-plaintiff filed on April 3. 1948. an application before the Mamlatdar at Karad under Section 24 of the Bombay Tenancy Act. 1939 to recover possession of the lands. The application was decided in favour of the respondent-plaintiff by the Mamlatdar on June 2. 1948 and she recovered possession of the lands on June 23. 1948. The appellant-defendant filed an appeal to the District Deputy Collector. Karad Division North Satara District on June 30. 1948. The appeal was heard by the Deputy Collector who on August 18/21. 1948 reversed the order of the Mamlatdar and directed the respondent-plaintiff to restore the possession of the lands to the appellant-defendant. On August 23. 1948 the respondent-plaintiff filed an application in revision to the Provincial Government against the order of Deputy Collector and applied for the stay of the execution of the order till the disposal of the revision publication. On September 11. 1948. the plaintiff filed a suit out of which the appeal before the Bombay High Court arose against the appellant-defendant in the Court of Joint Civil Judge (J. D.) Karad for a declaration that she was entitled to retain possession of the lands and for an injunction restraining the defendant from taking possession of the lands in enforcement of the order passed by the Deputy Collector. The defendant contended before the trial Court that the Civil Court had no jurisdiction to entertain the suit and that the respondent-plaintiff did not acquire the lands for personal cultivation. The trial Judge held that the Civil Court had jurisdiction to entertain the suit. but on the grounds of' bona fide personal cultivation he dismissed the suit. In appeal. the District Judge held that the respondent-plaintiff required the lands for personal cultivation and that the Civil Court had jurisdiction to entertain the suit and he. therefore. granted decree as prayed for by the plaintiff. The defendant. therefore. went in appeal before the Bombay High Court. The view of the District Court was that an appeal from a decision under See. 24. sub-section (2) of the Bombay Tenancy and Agricultural Lands Act. 1939 against the order of Mamlatdar can be entertained only by the Collector and not by the Deputy Collector who had no jurisdiction to entertain and hear the appeal against the decision of Mamlatdar to reverse his decision. The sole question which was argued before the Division Bench of the Bombay High Court was whether the District Deputy Collector was competent to hear an appeal against an order passed by the Mamlatdar under Section 24. sub-section (2) of the Bombay tenancy Act. 1939 and since the expression 'collector' was not defined in the said Act. nor was it defined in the Bombay Land Revenue Code and therefore the question was whether the Deputy Collector is within the meaning given to the word 'Collector' under the Bombay General Clauses Act. 1904 should be considered. After considering that definition under the Bombay General Clauses Act 1904. the Division Bench considered the relevant provisions of the Bombay Land Revenue Code. namely. Sections 8 to 10 and referred Particularly to paragraphs 1 and 2 of Section 10. According to the Division Bench for purposes of determining whether Deputy Collector had a power to hear the appeal against the order of Mamlatdar under Section' 24 of the Bombay Tenancy Act. 1939. the two paragraphs. namely. paragraphs 1 and 2 of Section 10 were material. Mr. Justice Shah. as- he then was. speaking for the Court after setting out the relevant portion of Section 10 held as under:

'..............The effect of Section 10 is that, once an Assistant or a Deputy Collector is by an order of the Collector put in charge of revenue administration of one or more talukas in his district. by the operation of the second paragraph of Section 10. he is subject to territorial limitation statutorily invested with all the powers which are conferred upon the Collector by the Code or by any other law for the time being in force and is entitled to exercise the powers of a Collector under the Code or by any other law for the time being in force. The Bombay Tenancy Act. 1939 undoubtedly any other law' in force within the meaning of Section 10. It is undisputed in this case that the Deputy Collector. who decided the appeal filed. by the defendant was placed in charge of the Karad taluka and having been so placed in charge. he had under the second paragraph of Section 10 jurisdiction to exercise the powers of the collector to hear appeals under Section 24 of the Bombay Tenancy Act so far as regards the taluka in his charge.

It appears that the provisions of Section 10 of the Bombay Land Revenue Code were not brought to the notice of the learned District Judge. and he held that the Collector of the district alone can exercise appellate powers under Section 24 of the Bombay Tenancy Act. 1939. and not a Deputy Collector or an Assistant Collector. Mr. Jahagirdar. who appears on behalf of the plaintiff. has contended that even though the expression 'by this Act or any other law at the time being in force' in the second paragraph of Section 10 of the Bombay Land Revenue Code is very wide. the duties and the powers which an Assistant Collector or a Deputy Collector can exercise or perform relive upon the statutory delegation must in view of the first paragraph of Section 10 relate to the revenue administration of the taluka. He contended that when the Collector can by order put his Assistant or Deputy in charge of the revenue administration of a taluka or talukas. the exercise of the powers and the performance of the duties by the Assistant Collector or the Deputy Collector must be in relation to the revenue administration of the taluka or talukas in his charge and not in performance of any other duties or exercise of other powers. According to Mr. Jahaeirdar. if the powers which are required to be exercised or the duties which are required to be discharged by the Collector do not relate to the revenue administration. the jurisdiction cannot be exercised by the Assistant or the Deputy Collector reliving upon the provisions of Section 10. para. 2. In support of that contention Mr. Jahagirdar has pointed out to us certain provisions of the Bombay Tenancy and Agricultural Lands Act. 1948. and the amendment made by the Legislature in that Act by Bombay Act XII of 1951. Mr. Jahagirdar has also relied upon a decision of a Division Bench of this Court in Sonu v. Ariun : AIR1915Bom17 decided under the Mamlatdar's Courts Act of 1906.'

6. Rejecting this contention. the Division Bench. proceeded , to hold as under:-

'in our view there is nothing in Section 10 of the Bombay Land Revenue which suggests that there is a limitation as to the nature of the law for the time being in force or as to the character of the jurisdiction to be exercised by the Assistant Collector or the Deputy Collector when he has been put in charge of a taluka. The words of the second paragraph of Section 10 are explicit. They authorise the Assistant or the Deputy Co1lector. once he has been put in charge of a taluka. to exercise the powers of a Collector under the Bombay Land Revenue Code or under any other law for the time being in force. It is true that the exercise of powers by an Assistant Collector or a Deputy Collector can only become effective if he is out in charge of the revenue administration of a taluka by order of the Collector. The mere appointment by the State Government under Section 9 of an Assistant Collector or a Deputy Collector does not confer upon an Assistant or a Deputy Collector the powers of a Collector. It is only when an Assistant or a Deputy Collector is put in charge of the revenue administration of a taluka that he is authorised to exercise the powers of the Collector and to perform the duties of the Collector in regard to the taluka in his charge........'

The Division Bench thereafter referred to the decision in Sonu v. Arjun (AIR 1915 Bom 17) (supra) on which reliance was Placed on behalf of the appellant-defendant. The Division Bench also referred to an earlier decision of the Division Bench of the Bombay High Court in Keshav v. Jairam, (1911) 13 Bom LR 1031. The Division Bench found that the decision in Sonu v. Arjun and Keshav v. Jairam. (supra) were two conflicting decisions on the same point. but since it would be open to the Division Bench to follow either of the two decisions decided under the Mamlatdar's Courts Act, 1906, and Bombay Land Revenue Code, the Division Bench would be willing to accept the decision expressed in Keshav v. Jairam. The Division Bench of the Bombay High Court in Keshav v. Jairam held that there was no warrant in view of the provisions of second paragraph of Section 10 for holding that the powers under the other Act referred to therein are relating only to the revenue matters. Mr. Shah for the petitioner herein drew my attention that the question has been kept open by the Division Bench when it observed that for the decision in appeal before it. it was unnecessary for them to decide the point. In my opinion. however. the Division Bench has clearly expressed its view that there was no limitation on the nature of power in respect of questions arising under other law for the time being in force. or as to the character of jurisdiction to exercise such powers by the Assistant or Deputy Collector when he has been put in charge of the Taluka by the Collector. In that view of the matter. therefore. I am of the opinion that the Deputy Collector has the jurisdiction to determine. whether the permission as claimed for by respondent herein under Section 23-A of the Rent Act of 1947 should be granted or not. because the Deputy Collector was exercising the very powers of the Collector under the said Section. In that view of the matter. therefore. since this is the only contention of Mr. Shah it should be rejected and the petition should be dismissed with costs.

7. Petition dismissed.


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