T.U. Mehta, J.
1. This writ petition is directed against the order passed by the Gujarat Revenue Tribunal in revision application No. TEN 746/69 holding that the petitioners. herein are not the tenants of the disputed fields which are situated in Dehen village of Olpad taluka in Surat district. The proceedings before the Tribunal arose out of the application filed by deceased Keshavlal Pragji, husband of petitioner No. 1 and father of petitioners Nos. 2 to 7 under See. 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act'), to obtain a decision that he is the tenant of the disputed lands, The MaMl2tdar, Olpad, held that the petitioners are, the tenants and this decision of the Mamlatdar was confirmed by the Prant Officer, Olpad in appeal preferred before him by the respondent herein. The Tribunal reversed the decision of the Prant Officer while acting under its revisional jurisdiction under 76 of the Act.
2. This matter initially came up for hearing before our learned brother S. H. Sheth J. before whom the petitioners raised the contention that the proceedings before the Tribunal were vitiated as no appeal against the findings of the Mamlatdar under Section 70(b) that a particular person is a tenant, is provided by law and hence the appeal preferred by the respondent before the Prant Officer was incompetent. The contention was that if appeal before the Prapt Officer was incompetent, even the revision application before the Tribunal against the order of the Prant Officer was equally incompetent. For the proposition that the Act does not provide any appeal against the decision of the Mamlatdar under See. 70(b) of the Act, the learned advocate of the petitioners relied upon the decision of our learned brother J. B. Mehta, J. in Sureshchandra Dhirajlal Store v. K. K. Shrotriya, (1970) 11 Guj LR 821. In this case Mehta J. has held that the legislature has failed to provide any appeal against adjudication as to whether a person was a tenant or a permanent tenant and when the Legislature keeps a lacuna, it is not open to the court to fill up the lacuna by any presumed intention of the Legislature and, therefore, the Deputy Collector has no appellate jurisdiction over the decision of the Mamlatdar that a particular person is a tenant or not under See. 74 (1) of the Act. The other side i.e. the respondent put reliance on the contrary decision given by Bakshi J. in Spl. C. A. No. 93 of 1962 decided on 29-4-1964 (Guj) wherein the learned Judge has held that even though 74 of the Act does not specifically provide for an appeal against the order passed by the Marnlatdar, under Section 70(b) of the Act, the said appeal is by necessary implication provided for in See. 74 (1) (a) which refers to an order under 4 of the Act. 4 of the Act, as will be presently seen, deals with the cases wherein persons are deemed to be tenants. In view of this conflict between the two decisions of this court, Sheth J. has referred this matter to a larger bench, and this is how this matter comes before us for decision.
3. Before touching the controversial points involved in this writ petition, it would be necessary to refer to some of the relevant provisions of the Act. 70 of the Act prescribes several duties of the Mamlatdar. Clause (b) of this Section, as it stands at persent, is in the following terms:
'(b) to decide whether a person is or was a tenant or protected tenant or a permanent tenant.'
74 of the- Act provides for appeals and enumerates certain orders of the Mamlatdar against which an appeal can be filed to the Collector. The enumerated list of the orders which are covered by this section does not specifically refer to the order passed by the Marnlatdar under See. 70(b) of the Act, but clause (a) of 74 (1) is found to be in the following terms:
' (a) an order under 4.'
It is thus apparent that an appeal against the order of Manilatdar is specifically provided in 74, if the said order is 'an order under 4.' It is, therefore, necessary to refer to the provisions of See. 4. This section, as already stated above, refers to the persons who are deemed to be tenants, but since, in our opinion, this section is comprehensive enough to cover even the real tenancies, it would be necessary to quote the exact terms in which this section is enacted. It is as under:-
'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 and if such person is not:-
(a) a member of the owner's family; or
(b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner's family, or
(c) a mortgagee in possession.
A person shall not be deemed to be a tenant under this section if such person has been on an application made by the owner of the land as provided under See. 2-A of the Bombay Tenancy Act, 1939, declared by a competent authority not to be a tenant.
Where any land is cultivated by a widow, a minor or a person who is subject to physical or mental disability or a serving member of the armed forces through a tenant then notwithstanding anything contained in Explanation I to clause (6) of See. 2, such tenant shall be deemed to be a tenant within the meaning of this section.'
Section 2 of the Act provides for several definitions in different clauses. Clause (10-A) defines 'Permanent tenant' as under:
'(10-A) 'permanent tenant' means a person-
(a) who immediately before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1965 (hereinafter called 'the Amending Act, 19,55').
(i) holds land as mulgenidar or mirasdar; or
(ii) by custom, agreement, or the decree or order of a court holds the land on lease permanently, or
(b) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity;
and includes a tenant whose name or the name of whose predecessor-in-title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant immediately before the amendment of the Amending Act, 1955.'
Clause (14) defines 'protected tenant' as under:
'14. 'Protected tenant' means a person who is recognised to be a protected' tenant under 4-A.'
Clause (15) defines 'tenant' as under:
1118. 'tenant' means a person who holds land on lease and includes:
(a) a person who is deemed to be a tenant under 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;
(d) a person who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued, or is deemed to have continued, to remain in actual possession, with or without the consent of the landlord, of such land till the specified date;
and word 'landlord' shall be construed accordingly.'
4. From reference to the provisions of 74 it is apparent that, as this section stood at the relevant time, it did not refer specifically to the orders passed by the Mamlatdar under See. 70(b) of the Act. However, it should be mentioned here that by Gujarat Act 19 of 1973, this section was amended and following clause was added to it.
'(ta) an order passed under (b) of 70. '
It appears that this amendment was introduced in see, 74 as a result of the decision given by J. B. Mehta, J. that an order passed by the Mamlatdar holding that a particular person is a tenant or not, is not appealable under See, 74. However, the. fact remains that at the relevant time this amendment was not there and therefore, the question which arises to be determined is whether in absence. of this amendment it can be said that the decision of the Mamlatdar given on the question whether a particular person is a tenant or not, was appealable or not.
5. If a reference is made to the decision given by our learned brother J. B. Mehta, J. in the above referred case of Sureshchandra, (1970-11 Guj LR 821) it will be found that he has recorded his conclusions on this point in the following words:
'In the present case there was no dispute about the respondents being tenants. The dispute was as to the nature co their tenancy whether they were permanent tenants or protected tenants, The Legislature has failed to provide any appeal against such adjudication as to whether a person was a permanent has been made under Section 70(b) by the Mamlatdar. It is of course a lacuna as the Legislature would never have failed to provide an appeal on such a substantial adjudication. Where however, the Legislature keeps a lacuna, it is not open to this Court to fill up the lacuna on any assumed intention of the Legislature.'
It is found that the above referred judgment of Bakshi J. was not brought to the notice of Mehta, J. when he gave this decision.
6. But the question which thus arises to be considered is whether by not making a specific and pointed reference to the orders passed by the Mamlatdar under See. 70(b) of the Act in the list of appealable orders contemplated by Section 71(1) of the Act, the Legislature has kept a lacuna or whether the Legislature did so because the same was not found necessary in view of the fact that appeal against 'an order under See. 4' of the Act was already provided. This brings us to the construction of the provisions contained in 4 of the Act.
7. While construing the provisions of 4 of the Act, one important fact which is to be borne in mind is that if the language of this section is closely read, it will be found that it is comprehensive enough to cover the cases of even those tenants who hold land on contractual lease hold rights. This becomes evident by reference to the opening words of the section which confer the status of a tenant on 'a person lawfully cultivating any land belonging to another person.' The section is designed to cover all persons 'lawfully cultivating' the land irrespective of the question whether such persons are lawfully cultivating under a contract of lease or under a licence, custom, grant or otherwise. The primary requirement of this section is that a person should be 'lawfully' cultivating the land in question, It is true that the definition of the expressions 'permanent tenant,' 'protected tenant' and 'tenant' are separately provided by the Act in clauses (10-A), (14) and (18) of Section 2. But it appears that to make the protection granted by the Act complete, the Legislature has made the position of lawful cultivation doubly sure by enacting See. 4 in a more comprehensive manner which would cover all different modes of lawful cultivation. It cannot be gainsaid that a contractual tenant or a permanent tenant or a protected tenant is a person lawfully cultivating land in question and, therefore, the cases of even such tenants would be covered by 4. Of course, 4 speaks of 'deemed' tenants but that is because of the fact that it also covers cases of those who are not actual tenants by virtue of contractual rights but who are required to be treated as tenants on account of the fact that they are lawfully cultivating the disputed land. This, however, does not mean that the operation of 4 is confined only to those persons who are required to be protected by the deeming fiction. The result, therefore, is that 4 cannot be confined in its operation only to those who are required to be protected by invoking the deeming fiction of the section. In our opinion, therefore, 4 is covering the cases of actual tenants, who are on the land by virtue of their contractual rights or otherwise as well as those who are required to be protected on account of their lawful cultivation by virtue of the deeming fiction contemplated by this section.
8. On further scrutiny of 4 it is found that it contemplates that the land in question should not be cultivated personally by the owner. This is another requirement of See. 4 and this requirement shows that the land must be in possession of the person who claims to be cultivating it lawfully. So far as this requirement is concerned, it is not found to be inconsistent with the spirit of the Act because if a further reference is made to the provisions contained in Section 14 of the Act, it will be found that under the provisions of that section, notwithstanding any law, agreement or usage or the decree or order of a court, the tenancy of any land shall not be determined unless the tenant has failed to cultivate the land personally. Therefore, even in case of a tenant who claims contractual lease hold rights over the land his tenancy is liable to be terminated and put to an end if he is found to have failed to cultivate that land personally. Under the circumstances, personal cultivation of the land even by a contractual tenant is found to be an essence of the protection of his tenancy. This being the position, the requirement of See. 4 that the land in question should not be cultivated personally by the owner is found to be quite consistent with the spirit of the Act. Therefore we are of the opinion, that See. 4 covers the cases of a tenant, a permanent tenant or a protected tenant inasmuch as it also covers the cases of deemed tenants. If this is so, whenever a Marnlatdar gives his decision with regard to a particular person that he is a tenant, he virtually does so under the provisions of 4. Even otherwise if a person is found to be a deemed tenant under the provisions of 4 he is covered by the definition of the word 'tenant' given in clause (18) of See. 2. Therefore, whenever a Mamlatdar holds -that a particular person is a deemed tenant under 4 there is implicit in that decision a finding that he is a tenant. If that be so, we are of the opinion that every decision of the Mamlatdar on the question whether a particular person is a tenant or not, is the decision which is covered by 4 and is as such appealable under See, 74 (1) (a) of the Act.
9. In this connection, it should be noted that though 74 (1) (a) refers to 'an order under 4', See. 4 itself does not speak of an order nor does 70, which refers to the duties and functions of Mamlatdar, provide for any decision of the Mamlatdar under 4. This is probably because of the reason that the Legislature has enacted 4 in such a comprehensive manner that it would cover the cases of deemed tenants as well as the actual tenants.
10. Even otherwise, if we look to the real intention of the Legislature, the question which arises to be considered is, can it be said that the Legislature wanted to protect the cases of deemed tenants more than the cases wherein the Mamlatdar finds that a particular person is either a tenant or a permanent tenant or a protected tenant? Reference to the definition of the expression 'permanent tenant' shows that it involves at good deal of evidence as regards customs, or agreement. In many cases the evidence as regards custom and agreement would be complicated. The question, therefore, is could the Legislature have ever intended that such complicated questions which are decided by the Mamlatdar should be kept beyond the challenge of appeal, while the other questions which relate to deemed tenancy, should be made subject to appeal? We cannot attribute any such intention to the Legislature, and since we find that the Legislature has intentionally not provided a specific clause with regard to the appeal against the order passed under Section 70(b) because of the comprehensive nature of 4. We do not find any substance in Miss Shah's contention that appeal preferred by the respondent before the Prant Officer was incompetent.
11. Now so far as the facts of this case are concerned, even' presuming that the appeal which the respondent preferred before the Prant Officer was incompetent, we find that it makes no difference. Here we should make a reference to 76-A of the Act which says that where no appeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the State Government, at any time, call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by and as to the regularity of the proceedings of, such Mamlatdar or Tribunal, as the case may be, and pass such order thereon as he deems fit. This provision of See. 76-A thus invests the Collector with revisional powers and these powers can be invoked either suo motu. or on a reference made by the State Government. Thus when the Prant Officer, Olpad heard the appeal preferred by the respondent in this case, he can be presumed to have heard it, if not under any appellate powers, then under the revisional powers vested in him by 76-A of the Act.
12. The Tribunal while invoking its revisional jurisdiction under 76 is not fettered in its revisional powers because 76 provides that notwithstanding anything contained in the Bom. Revenue Tribunal Act, 1957, an application for revision may be made to the Tribunal against 'any order' of Collector, on the grounds stated in the section. It is thus clear that the revisional jurisdiction of the Tribunal can be invoked against any order passed by the Collector. Therefore, it does not matter whether the Collector has passed a particular order under his appellate powers or under his revisional powers. The Tribunal can exercise its revisional jurisdiction, provided any. of the grounds mentioned in CIS (a), (b) and (c) of 76 (1) are satisfied.
13. Under this situation, the real question which requires to be determined is whether the Tribunal was justified in interfering with the order passed by the Collector under any of the grounds mentioned in cls. (a), (b) and (c) of See. 76 (1). These grounds are as under:
' (a) that the order of the Collector was contrary to law,
(b) that the Collector failed to determine some material issue of law, or
(c) that there was a substantial defect in following the procedure provided by this Act or that there has been failure to take evidence or error in appreciating important evidence which has resulted in the miscarriage of justice.'
Here, if a reference is made to the decision of the Tribunal, it becomes clear that the Tribunal found that the Mamlatdar as well as the Collector were both in error in appreciating important evidence. The Tribunal has elaborately discussed this particular point in its judgment and, we are satisfied that the Tribunal has rightly interfered with the decisions of the Mamlatdar and the Collector on the ground that both of them were in error in appreciating important evidence. This brings us to the merits of the case.
14. Before discussing the merits of the case, it should be mentioned that the writ jurisdiction of this court for challenging the decision given by the Tribunal, can be successfully invoked by the petitioners only if it is shown that the Tribunal has committed any error which 'is apparent on the record. If the Tribunal is found to have interfered with the findings recorded by the lower authorities on the ground that they have committed error in appreciating important evidence and has there after put its own appreciation of the evidence recorded in the case it cannot be said that the Tribunal has committed any error apparent on the record unless it is shown that the conclusions arrived at by the Tribunal are either perverse or had absolutely no justification from the recorded evidence.
15. The facts of the case show that the deceased Keshavbhai Pragji claimed tenancy rights over 9 fields bearing survey Nos. 210, 213, 238/2, 422, 523/2, 747/2, 750, 568/3, and 563/1. It does not appear to be in dispute that before the year 1950 he was cultivating these lands as a tenant. The case of the respondent landlord, however, is that in the year 19,50 he surrendered his tenancy rights over these lands. The Tribunal has elaborately discussed this question of surrender in the year 1950 and has found that the mutation entry No. 1601 D/5-6-19,60 which was produced before the lower authorities, was not properly appreciated by them. This mutation entry clearly reveals that out of these 9 survey numbers, which are mentioned above Keshavbhai Pragji surrendered his tenancy rights over six survey numbers which are 213, 238/2, 422, 523/2, 747/2 and 750. This entry specifically quotes Mamlatdar's case number and states that the lands were surrendered by Keshavbhai Pragji to Kalyanji, the then landlord who was thereafter shown as the occupant. In para 10 of its judgment, the Tribunal has shown how both the lower authorities have gone wrong in appreciating this entry. We find ourselves completely in agreement with the appreciation made by the Tribunal so far as this entry is concerned. Apart from these entries, the Tribunal has considered some previous statements made by Keshavbhai Pragji before the Revenue authorities. In these statements Keshavbhai Pragji has made clear admission of the fact that he was not holding any tenancy rights with regard to the disputed survey numbers and, therefore, his name should not be shown as a tenant with regard to these survey numbers. The Tribunal has discussed this aspect of the matter in para 16 of its judgment and after having done this, the Tribunal summarises. its findings in para 19 of its judgment as under:
'Suffice it to say that both the authorities below have grossly erred in correctly and properly appreciating the evidence on record. The case of the applicant is proved firstly by the proposition about surrender elaborately discussed above. It is secondly proved by the two statements made by the alleged tenant before the Talati in 1955-56 that he was not a tenant of the lands. On the top of it, there come two more- statements of the alleged tenant made, in 1962 before the Agricultural Lands Tribunal in two separate inquiries under See. 320 relating to other lands held by him on lease from other landlords. In those, inquiries he was required to mention all his leased holding and he. mentioned it to be 2 acres 7 gunthas only. He never mentioned all these lands as held by him on lease.'
We have gone through copies of the statements which the 'Tribunal has referred to in the above excerpts and we are satisfied that the findings recorded by the Tribunal about the evidentiary value of the admissions made by Keshavbhai Pragji in these statements are unassailable.
16. In these circumstances, we find nothing in the judgment of the Tribunal which would induce us to believe either that there is any apparent error in that judgment or that, that judgment is perverse. The result, therefore, is that so far as these six survey numbers which are mentioned above, are concerned, there is satisfactory evidence to show that Keshavbhai Pragji had surrendered his tenancy rights over them in the year 1950. It is not the case of the petitioners that after this surrender new tenancy rights to these lands in favour of Keshavbhai Pragji. Therefore, so far as these six survey numbers are concerned, we find no reason to interfere with the conclusions which are arrived at by the Tribunal.
17. However, the Tribunal is not found to have recorded any findings with regard to the remaining three survey numbers which are S. Nos. 210, 568/3 and 568!1. Throughout its judgment, the Tribunal has not recorded any finding with regard to these three survey numbers. The surrender which is found to have been made by Keshavbhai Pragji in the year 1950 is obviously with reference to the remaining six survey numbers. In these circumstances. we are of the opinion that there is an apparent error committed by the Tribunal in not recording any finding whatever on the question whether Keshavbhai Pragji has ever surrendered his tenancy rights, if any, over S. Nos. 210, 568/3 and 568/1. We are, therefore, of the opinion that for this limited purpose, the matter should go back before the Tribunal. The Tribunal shall after hearing the parties, record its findings whether with regard to S. Nos. 210, 568/3 and 5,68/1 Keshavbhai Pragji had any tenancy rights, and if so, whether he had surrendered the same prior to 1950 or at any subsequent time. After appreciating the evidence, the Tribunal shall record its findings whether Keshavbhai Pragji can be declared to be a tenant with regard to these three survey numbers under the application made by him. The rule issued in this matter is accordingly made absolute to the above stated limited extent without any order as to costs.
18. Order accordingly.