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Sureshchandra Dhirajlal Store and ors. Vs. K.K. Shrotriya, Dist. Deputy Collector. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR821
AppellantSureshchandra Dhirajlal Store and ors.
RespondentK.K. Shrotriya, Dist. Deputy Collector.
Cases ReferredAbdul v. State
Excerpt:
.....that the mamlatdar had no jurisdiction to determine this dispute whether the respondents were permanent tenants or protected tenants as the jurisdiction of the mamlatdars' court was clearly excluded under section 85(1) of the tenancy act. it is well-settled after the decision of the division bench in abdul v. while the other orders passed before the final stage was reached determining the purchase price were all appealable to the collector under section 74(1)(mb) in view of this decision if this order was passed during the proceedings under section 32g, the appeal would clearly lie under section 74(1)(mb) before the collector. the legislature has failed to provide any appeal against such adjudication as to whether a person was a permanent tenant or a protected tenant, which has been..........price are contemplated under section 32g, including the order determining whether a person is a tenant, protected tenant or a permanent tenant. it is only the order of fixation of the final purchase price which was made appealable to the state government under section 32j, and these appeals can be disposed of by the collector as a delegate of the state government.lt was only that final order determining the purchase price that becomes final under section 32j, and was not revisable by the revenue tribunal; while the other orders passed before the final stage was reached determining the purchase price were all appealable to the collector under section 74(1)(mb) in view of this decision if this order was passed during the proceedings under section 32g, the appeal would clearly lie under.....
Judgment:

J.B. Mehta, J.

1. These petitions are filed by the landlords against the order of the District Deputy Collector, dated October 16, 1964, setting aside the order of the Mamlatdar and the Agricultural Lands Tribunal dated July 4, 1963, on the preliminary question whether the applications filed before the Mamlatdar were barred by limitation. The petitioners are the Ex-Inamdars of two villages in Chorasi Taluka in Surat District. By the order, dated May 8, 1957, of the Assistant Collector under Section 5(2) of the Bombay Personal Inams Abolition Act, 1952, the petitioners were' held to be occupants keeping at the same time the question open as to whether these respondents were permanent or protected tenants for which purpose they were asked to approach the competent authority under the Tenancy Act. The tenants filed an application on June 19, 1962, for getting the nature of their tenancy determined on the ground that they were permanent tenants. The tenants had filed these applications stating that time was fast approaching for determining the purchase price and, therefore, it was necessary for them to get declarations as to their status. In those applications the petitioners applied on May 8,1963, for deciding the preliminary issue of limitation. The Mamlatdar who was the Lands Tribunal gave the parties a fortnight's time to adduce necessary evidence and he determined this issue of limitation holding that these applications were time barred as they were not filed within six months from May 8, 1957, when the cause of action accrued. The Deputy Collector has set aside the said orders and has remanded the matters to the Mamlatdar for deciding the original application on merits according to law. It is this order which is challenged in all these petitions. All the petitions involve common questions of law and facts and, therefore, they are disposed of by this common order.

2. At the outset Mr. Vakil vehemently argued that it is well settled that the Mamlatdar has no jurisdiction to give declaration as the declaratory relief can be given only by a civil Court and, therefore, the applications were wholly incompetent before the Mamlatdar in these cases. Mr. Vakil in this connection relied upon my decision in Ambalal Ranchhod v. Shamjibhai X G.L.R. 197. That decision could not help Mr. Vakil. I have pointed out therein that Section 70 of the Tenancy Act mentions duties and functions to be performed by the Mamlatdar for the purposes of the Act. In various sub-clauses of Section 70 various questions are mentioned which are to be decided by the Mamlatdar. But no where the Legislature has used any phraseology to suggest that the Mamlatdar shall give such a declaration. Following the decision in Bai Achhuba v. Kalidas A.I.R. 1961 S.C. 651, I have held at page 205 that even though the Mamlatdar would be deciding the question whether the person is a tenant or not, the decision would be a finding on the question left to the Mamlatdar by the Legislature within his exclusive jurisdiction and it would not amount to any formal declaration, which only the civil Court could give. In that case also the application before the Mamlatdar was held to be competent. In the present case also even though the applicants have prayed for a declaration as to their status, the application substantially is for having a decision of the Mamlatdar on the question whether the applicants were permanent tenants as alleged by them or protected tenants as contended by the petitioners-landlords. This dispute is within the exclusive jurisdiction of the Mamlatdar and had been rightly entertained under Section 70(b) of the Tenancy Act. Therefore, the first objection raised by Mr. Vakil must fail. Even on the question of limitation, I have pointed out in that decision relying upon the decision of the Supreme Court in Rukhamabai v. Lal Laxminarayan 1960(2) S.C.R. 353, that there would be no compulsory cause of action for filing an application under Section 70(b) until there was an infringement or at least a clear and unequivocal threat to infringe the applicants' right by the opponent against whom the application is made. Every threat by a party to such a right, however, ineffective or innocuous it may be, could not be considered to be a clear and unequivocal threat so as to compel him to take the action. It was only the threat which effectively invaded or jeopardised the said right that gave rise to a compulsory cause of action. In the present case the petitioners-landlords never threatened to invade the status of the tenants and even in the earlier order dated May 8, 1957, by the Assistant Collector, the question of the status of the tenants was left open. There being no effective threat which invaded or jeopardised the rights of the respondents-tenants, they had no compulsory cause of action which would require them to make an application for adjudication of their status under Section 70(b). In fact, the tenants stated in their applications under Section 70(b) that as the purchase price was to be determined it was necessary for them to have the adjudication of their status. Therefore, there was no bar of limitation whatsoever to such an application. The view of the Mamlatdar being patently erroneous in law in view of the settled legal position and as the Mamlatdar had refused to embark on the inquiry on merits, it would amount to a refusal to exercise jurisdiction and the Deputy Collector was right in quashing the said order as without jurisdiction.

3. Mr. Vakil, therefore, next argued that the Deputy Collector had no jurisdiction to quash this order of the Mamlatdar. The Deputy Collector had mentioned three provisions of law for invoking his jurisdiction: (1) Section 23 of the Mamlatdars Courts Act, (2) Section 74 of the Tenancy Act, and (3) Section 76A of the Tenancy Act. As regards Section 23 of the Mamlatdars Courts Act, it is obvious that the Mamlatdar had no jurisdiction to determine this dispute whether the respondents were permanent tenants or protected tenants as the jurisdiction of the Mamlatdars' Court was clearly excluded under Section 85(1) of the Tenancy Act. Merely because in a proceeding under Section 70(b) the procedure which the Mamlatdar has to follow is the procedure under the Mamlatdars Courts Act, the order passed by the Mamlatdar under Section 70(b) would not be an order which can be revised under Section 23 of the Mamlatdars' Courts Act.

4. As regards the applicability of Section 74, it should be kept in mind that Section 74(1) gives appellate jurisdiction to the Collector against specified orders of the Mamlatdar and the Tribunal. One of those orders is under Section 74(1)(a) is an order under Section 4. The only other provision which was relied upon in this connection was Section 74(1)(mb) mentioning a decision under Section 31 or 32 for an order under Section 32G. At the outset it should be noted that Section 74(1) no where specifies an order under Section 70. Therefore, the appeal would not be competent against the decision under Section 70(b) adjudicating the dispute whether the person is a permanent tenant or a protected tenant. It would not be appealable under Section 74(1) unless such an order is treated as one under Section 4 or under Section 32G. The Deputy Collector has held that as this adjudication had become necessary for the fixation of purchase price under Section 32G, the order could be treated as one falling under Section 32G. It is well-settled after the decision of the Division Bench in Abdul v. State VI G.L.R. 300 chat various orders before the stage of determining the purchase price are contemplated under Section 32G, including the order determining whether a person is a tenant, protected tenant or a permanent tenant. It is only the order of fixation of the final purchase price which was made appealable to the State Government under Section 32J, and these appeals can be disposed of by the Collector as a delegate of the State Government.lt was only that final order determining the purchase price that becomes final under Section 32J, and was not revisable by the Revenue Tribunal; while the other orders passed before the final stage was reached determining the purchase price were all appealable to the Collector under Section 74(1)(mb) In view of this decision if this order was passed during the proceedings under Section 32G, the appeal would clearly lie under Section 74(1)(mb) before the Collector. In the present case, however, the proceeding under Section 32G was not started by the Lands Tribunal and, therefore, there was no question of any order being passed under Section 32G in anticipation as held by the Deputy Collector. Mr. Joshi, therefore, vehemently argued that the order must be treated as an order under Section 4 because unless a person was held to be first a tenant, there would be no question of adjudication of his status as a permanent tenant or as a protected tenant. Under the definition of a tenant, under Section 2(18) it means a person who holds lands on lease and includes:

(a) a person who is deemed to be a tenant under Section 4

(b) a person who is a protected tenant, and

(c) a person who is a permanent tenant.

Therefore, the order under Section 4 would only be in those cases where a person is deemed to be a tenant though he could not be holding contractual lease on the ground that he was lawfully cultivating land and whose case was not excluded by the other conditions mentioned in Section 4. In the present case there was no dispute about the respondents being tenants. The dispute was as to the nature of 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 tenant or a protected tenant, which 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 should also be kept in mind that before the relevant amendment in 19S5 Clause (mm) in Section 74(1) provided an appeal against an order passed under Section 31 as it then existed which provided for the recognition of protected tenants if such persons were deemed to be protected tenants under Sections 3, 3A and 4 of the Bombay Tenancy Act, 1939. That clause was deleted when Section 31 was replaced by Section 4A which is exactly in the same terms by Bombay Act, XIII of 1956. The order under this new Section 4A even has not been mentioned as the order against which an appeal lies to the Collector under Section 74(1). At the time of this very amendment Section 70(b) was amended enabling the Mamlatdar to decide whether a person is a tenant or a protected a tenant or a permanent tenant. Those last words 'or a permanent tenant' were added by this amendment in Bombay Act XIII of 1956. Even when this duty was added in the list of duties to be performed by the Mamlatdar under Section 70, the Legislature failed to provide an appeal before the Collector in case of such an order passed under Section 70(b) deciding whether a person is a tenant or a protected tenant or a permanent tenant or not. From this it is obvious that the Legislature has provided an appeal only against the order under Section 4 or when such a question is determined in a proceeding under Section 32G. But it has failed to provide for an appeal against the order determining the dispute whether a person was a permanent tenant or a protected tenant. This being the sole dispute raised in the present litigation, the Deputy Collector had no appellate jurisdiction under Section 74(1).

5. The Deputy Collector was, however, justified in invoking his revisional jurisdiction under Section 76A, which runs as under:

Where no appeal has been provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government at any time--

(a) 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

(b) pass such orders thereon as he deems fit:

provided that no such record shall be called for after the expiry of one year from the date of such order and no order of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard.

Section 76 thus gives a wide revisional jurisdiction to the Collector to call for the record of any inquiry or proceeding of any Mamlatdar to satisfy himself as to the legality or propriety of any order passed by the Mamlatdar and as to the legality of the proceedings of such Mamlatdar provided two conditions are satisfied: (1) that the record is called for within one year from the date of such order, and (2) interested parties are given opportunities to appear and be heard before such order is modified, annulled or reversed. The only limitation which is provided in this wide revisional jurisdiction is in the opening words, 'where no appeal has been filed within the period provided for'. Thus, jurisdiction to revise any order of the Mamlatdar under Section 76A on fulfillment of the two conditions mentioned in the proviso comes in after a period of sixty days which is provided for appeals under Section 79 expires from the date of the order revised. If during that period no appeal has been filed the revisional jurisdiction of the Collector can always be invoked. Mr. Vakil, however, argued that the opening words, 'where no appeal has been filed within the period provided for' would mean on a plain literal construction that the revisional jurisdiction had the same field as appealable orders. Such construction of the opening words would be wholly inconsistent with the wide words used by the Legislature in Section 76 A that the revisional jurisdiction can be exercised in respect of any order or inquiry or proceedings of the Mamlatdar or the Tribunal. The nature of the orders which can be revised being not limited in Section 76A, but being any order passed, the revisional jurisdiction is of the widest amplitude and it could never be cut down by the opening words. The limitation contained in the opening words would be applicable whenever language of that clause would apply. By its very nature the opening words would never apply where no appeal could be filed against any particular order. It is only those orders which are appealable that the limitation contained in the opening words be applicable viz., that the revisional jurisdiction could not be invoked in such appealable orders until 60 days' limitation period expires. That limitation clause is wholly inapplicable by its nature to other orders which are not appealable under Section 74(1) and the revisional jurisdiction would be governed only by two conditions mentioned in the proviso, of course, if the ground for interference or for invoking revisional jurisdiction exists. The Legislature has by the opening words intended to widen the scope of this revisional jurisdiction not only in cases where no appeal lies but also where an appeal lies but may for some reason or other is not preferred during the period of limitation. It is with this end in view that the opening words were inserted in Section 76A and those words can never be construed to cut down the wide import of the expression 'any order which can be revised'. Therefore, there is no substance in the contention of Mr. Vakil that the Collector has no revisional jurisdiction. In the present case as I have already mentioned the order of the Mamlatdar was without jurisdiction, he invoked bar of limitation on a patently erroneous view of law and he refused to embark upon an inquiry on the merits. Such an order which is without jurisdiction and which is so patently erroneous in law (hat it could always be revised by the Collector in his revisional jurisdiction.

6. Therefore, in any event, the Dy. Collector was justified in revising the present order passed by the Mamlatdar holding that the application of the concerned tenants under Section 70(b) were barred by limitation. Therefore, on that ground, in any event this petition must fail. Rule, therefore, is discharged in each case with costs.


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