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Shah Visanji Dhugarshi Vs. Joshi Bhara Dhaya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 898 and 961 of 1977
Judge
Reported inAIR1982Guj220; (1982)2GLR19
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 - Sections 100(2), 107 and 110; Constitution of India - Article 227; Evidence Act, 1872 - Sections 115
AppellantShah Visanji Dhugarshi
RespondentJoshi Bhara Dhaya and ors.
Appellant Advocate C.C. Kamdar, Adv.
Respondent Advocate P.V. Hathi, Adv. for; H.B. Vaishnav, Adv.,; S.K. Suchdev
Cases ReferredKeshavlal Paragji v. Gujarat Revenue Tribunal
Excerpt:
- - the learned advocate appearing for the respondents, however, urged that the respondent could well raise the p1lea of permanent tenancy and this also could be deemed to have been negatived. hathi in this connection invited my attention to the last paragraph of the above-mentioned judgment of the division bench of this high court in the case of keshavlal paragii (air 1976 guj 146) (supra). it is perfectly open to these respondents to request the deputy collector to treat their earlier appeals as revision application, filed under the provisions of sec......agricultural lands (vidarbha region and kutch area) act, 1958 (hereinafter referred to, as 'the, kutch tenancy act' for brevity sake). after recording evidence the authority held in those two cases that the respondents were not tenants. being aggrieved by the decision of the mamlatdar, these respondents preferred two appeals before the deputy collector who quashed the order passed by the mamlatdar and remanded the proc4eedings* for fresh decision.the competent authority under section 100 (2) of the kutch tenancy act again held that the respondents were not the tenants. again the respondents preferred the appeals before the deputy collector but at that time the petitioners took up the contention that section 107 of the kutch tenancy act dealt with appeals and the appeal in respect of an.....
Judgment:
ORDER

1. These two almost identical matters by the common petitioners but against different respondents who are the father and the son can be convenient dealt with together and disposed of by this common judgment. The land involved in these two 'petitions is the agricultural land situated within the district of Kutch. The petitioners herein claim to be the Inamdars and on the advent of the Bombay Inams (Kutch Area) Abolition Act, 1958 (the 'Act,' for short) they claim to have procured the occupancy certificate as provided for in the said Act. According to them they were cultivating the same through hired labour. These respondents for the first time in the year 1967-68 put forth a contention that they were tenants on the land. In order to obviate this assertion on the Part of the respondents the Petitioners filed declaratory proceedings before the Mamlatadar under Section 100(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to, as 'the, Kutch Tenancy Act' for brevity sake). After recording evidence the authority held in those two cases that the respondents were not tenants. Being aggrieved by the decision of the Mamlatdar, these respondents preferred two appeals before the Deputy Collector who quashed the order passed by the Mamlatdar and remanded the proc4eedings* for fresh decision.

The competent authority under Section 100 (2) of the Kutch Tenancy Act again held that the respondents were not the tenants. Again the respondents preferred the appeals before the Deputy Collector but at that time the petitioners took up the contention that Section 107 of the Kutch Tenancy Act dealt with appeals and the appeal in respect of an order under Section 100 (2) of the Kutch Tenancy Act was not competent. This argument went home to the Deputy Collector who appears to have held that appeal is a statutory right and unless statute confers such a right. there cannot be any right to appeal. The result was that the appeals were dismissed. The matter was carried by the respondents to the Gujarat Revenue Tribunal by filing revision applications and the Revenue Tribunal took the decision that the orders were appealable with the result that the appeals were remanded to the Deputy Collector for decision on merits. It is these two identical decisions of the Gujarat Revenue Tribunal that are challenged in these two special civil applications.

2. It cannot be disputed that appeal is a right created by the statute and it is not a natural right. Whoever claims a right to prefer an appeal must pinpoint a specific legal provision under which such a right can be claimed. The order under See. 100 (2) of the Kutch Tenancy Act which is analogous to Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1-948 operative in this part of, the State is specifically not made appealable. So. there is no escape from the fact that there is no appeal against an order passed by the Mamlatdar under S. 100 (2) of the Kutch Tenancy Act.

3. A situation somewhat similar to the one that has arisen before me in these two petitions has arisen before the Division ~Bench of this High Court in respect of an appeal, against an order Passed under S. 70, N of - the B.' T. A. L. Act 1948. Overruling the, decision - of J B. Mehta, J the Division Bench of this High Court in the case of Keshavlal Paragji v. Gujarat Revenue Tribunal reported in (1975) 16 Guj LR 904: (AIR 1976 Guj 146) held that an order under S. 70(b) of the B.T. A. L. Act was appealable because it was to all interests and purposes an order under S. 4 of the B. T. A. L. Act which was made specifically appealable under S. 74 of the very Act. Thereafter the Legislature itself inserted a Provision in S. 74 and made the order passed under S. 70(b) as specifically appealable. Relying upon the analogy of that decision of the Division Bench of this High Court, the Gujarat Revenue Tribunal took the view that the orders under S. 100 (2) of the Kutch Tenancy Act should be treated to be orders under S. 7 of the said Act. It is to be recalled here that See. 6 of the Kutch Tenancy Act deals with persons deemed to be tenants and Section 7 deals with permanent tenants. If we turn to Section 107 of the Kutch Tenancy Act we find that the order under See. 7 is made appealable but order under Section 6 is not made appealable. So the analogy of the provisions of Bombay Tenancy Act as applicable to this part of the State will not at all be attracted to the case arising under the Kutch Tenancy Act. In my view the Tribunal has seriously erred in its view in this regard.

4. Mr. P. V. Hathi. the learned advocate appearing for the respondents, however, urged that the respondent could well raise the p1lea of permanent tenancy and this also could be deemed to have been negatived. in the decision made by the Mamlatdar under S. 100 (2) of the Kutch Tenancy Act. This is a fresh factual plea raised for the first time before me and such pleas are raised nowhere in the affidavits before. Even if they- are raised in the form of affidavit-inreply in this Court in a petition under Art. 227 of t1ye Constitution of India, such new pleas cannot be taken note of.

5. Mr. Hathi then alternatively urged that the earlier remand order by the very Deputy Collector in the appeal of these tenants was taken lying down by these pretitioners and so they couldn't permitted to raise this question, if they had missed the bus on the first occasion. It is difficult for me to accept this arguement. Lack of jurisdiction is a point of law apparent on. the face of the record. Consent and conduct do not confer Jurisdiction on any authority.

6. The earlier appeal was not pre. ferred by these petitioners and therefore they could not be said to have taken any advantage of the earlier proceedings. For want of any legal assistance if they did not object to the lack of', Jurisdiction, they could not be now es-1 topped under any legal principle from raising this question.

7. Mr. Hathi in this connection invited my attention to the last paragraph of the above-mentioned judgment of the Division Bench of this High Court in the case of Keshavlal Paragii (AIR 1976 Guj 146) (supra). It is perfectly open to these respondents to request the Deputy Collector to treat their earlier appeals as revision application, filed under the provisions of Sec.110 of the Kutch Tenancy Act which is analogous to See. 76A of the Bombay Tenancy Act which is in operation in this part of the State and the Deputy Collector will be at liberty to deal with such a request in accordance with law. The result is that the petitioners are allowed by quashing the Gujarat Revenue Tribunal. Rule is accordingly made absolute with no order as to costs in both the matters.

8. Petitions allowed.


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