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Alimiya Mirumiya Saiyed Vs. Kasai Mohmedhusen Ibrahim and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR999
AppellantAlimiya Mirumiya Saiyed
RespondentKasai Mohmedhusen Ibrahim and ors.
Cases ReferredSupreme Court In Musamia Imam Haider Box Razvi v. Rabari Govindbhai Ratnabhai and Ors. A.I.R.
Excerpt:
- .....the tenancy act for the sake of brevity), he referred that issue to the mamlatdar, kapadvanj. the mamlatdar decided the issue on merits by his order dated 28th february 1969. he held that the petitioner was not the tenant in respect of the land in question prior to 20th march 1957. the petitioner appealed against that decision to the deputy collector at anand who did not decide the appeal on merits but dismissed it on the ground that the reference made by the civil court to the mamlatdar was incompetent. he recorded that conclusion because in light of the decision of the supreme court in musamia imam haider box razvi v. rabari govindbhai ratnabhai and ors. a.i.r. 1969 supreme court 439 the issue whether the petitioner was a tenant could not be decided by the mamlatdar under section.....
Judgment:

S.H. Sheth, J.

1. S. No. 36 of Taiyabpura in Kapadvanj Taluka of Kaira District was sold by respondents Nos. 1 to 9 by a registered sale-deed to the petitioner on 29th March 1957, In 1967 respondents Nos. 1 to 9 filed against the petitioner Regular Civil Suit No. 45 of 1967 in the Court of the Civil Judge, Junior Division, at Kapadvanj for a declaration that the sale in respect of S. No. 36 was not binding on them. The petitioner filed his written statement and resisted the suit, One of the contentions which he raised in that suit was that in any case he had been a tenant in respect of the land in question prior to its sale by respondents Nos. 1 to 9 in his favour on 20th March 1957 and that, therefore, he had become a deemed purchaser of the land in question. One of the issues which the learned Trial Judge raised was whether the petitioner was the tenant in respect of the land in question prior to 20th March 1957 and under Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act for the sake of brevity), he referred that issue to the Mamlatdar, Kapadvanj. The Mamlatdar decided the issue on merits by his order dated 28th February 1969. He held that the petitioner was not the tenant in respect of the land in question prior to 20th March 1957. The petitioner appealed against that decision to the Deputy Collector at Anand who did not decide the appeal on merits but dismissed it on the ground that the reference made by the Civil Court to the Mamlatdar was incompetent. He recorded that conclusion because in light of the decision of the Supreme Court In Musamia Imam Haider Box Razvi v. Rabari Govindbhai Ratnabhai and Ors. A.I.R. 1969 Supreme Court 439 the issue whether the petitioner was a tenant could not be decided by the Mamlatdar under Section 70(b) of the Tenancy Act. The petitioner challenged that decision in a revision application which he filed in the Gujarat Revenue Tribunal. The Revenue Tribunal modified the order made by the Deputy Collector and held that the order made by that Mamlatdar was incompetent and directed the Mamlatdar to return the reference to the Civil Court unanswered.

2. It is that order of the Revenue Tribunal which is challenged by the petitioner in this petition.

3. Mr. Shah who appears for the petitioner has relied upon amended Section 70(b) and Section 85A of the Tenancy Act and contended that the Mamlatdar had the jurisdiction to decide the reference which was made to him by the Civil Court. Section 70 (b) was amended by Gujarat Act 5 of 1973. It reads as follows:

For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar-.. .... .... ....(b) to decide whether a person is or was a tenant or a protected tenant or a permanent tenant;

Prior to the enactment of Gujarat Act 5 of 1973 by which Section 70 (b) was amended, it read as under:

For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar-

xxx xxx xxx xxx(b) to decide whether a person is a tenant or a protected tenant or a permanent tenant.

It is quite clear, therefore, that prior to its amendment by Gujarat Act 5 of 1973 Section 70 (b) conferred jurisdiction upon the Mamlatdar to decide the question of the present tenancy of a person and did not confer upon him jurisdiction to decide the question relating to his past tenancy. That is the view which the Supreme Court has expressed in Musamiya 's Case (supra). After the amendment of Section 70 (b) Mamlatdar has been empowered to decide questions relating to the past tenancy of a person. Therefore, ex fade Mamlatdar has now jurisdiction to decide whether the petitioner was a tenant prior to 20th March 1957. The question which therefore arises before me is whether Mamlatdar had the jurisdiction at the date when the reference was made to him by the Civil Court to decide whether the petitioner was a tenant in respect of the land in question prior to 20th March 1957. In order to show me that Section 70(b) applies to all pending proceedings, Mr. Shah has invited ray attention to Section 85A of the Tenancy Act which also has been amended. Sub-section (1) of Section 85A as amended by Gujarat Act 5 of 1973 reads thus:

If any suit instituted, whether before or after the specified date, in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decided or deal with such issue under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

The provisions of Section 85A as amended govern all suits irrespective of whether they were instituted before or after the specified date. 'Specified date' has been defined by Clause (16C) of Section 2 of the Tenancy Act. This clause was also inserted by Gujarat Act 5 of 1973. The expression 'specified date' is defined to mean 'the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1972' which is Gujarat Act 5 of 1973. When Section 85A as amended by Gujarat Act 5 of 1973 is read in light of Clause (16C) of Section 2 of the Tenancy Act it becomes quite clear that the direction contained in Section 85A to stay the suit and to refer the issue arising under the Tenancy Act applies to suits instituted either before or after the specified date. The present suit was instituted prior to the specified date. It is therefore expressly governed by Section 85 A read with Clause (16C) of Section 2 of the Tenancy Act. Therefore, even if I confirm the decision of the Revenue Tribunal on the ground that when it was rendered it was lawful under the law then obtaining, the petitioner has now a fresh right under Section 85A (as amended) of the Tenancy Act to make a fresh application to the Civil Court to refer the issue relating to his past tenancy to the Mamlatdar and the Mamlatdar will have, under the amended Section 70(b) of the Tenancy Act, jurisdiction to decide it. It is quite clear, therefore, that the amended Section 85A governs all pending civil suits.

4. Therefore, if an issue as to the past tenancy of a person arises in proceedings pending on the date when Gujarat Act 5 of 1973 came into force, it must be referred to the Mamlatdar by virtue of the amended Section 85A read with Clause (16C) of Section 2 of the Tenancy Act and the Mamlatdar must decide it under Section 70(b) of the Tenancy Act, In this state of law, it is more advisable to remand the case to the Deputy Collector to decide it on merits rather than confirm the decision of the Revenue Tribunal and to force the petitioner to make a fresh application to the Civil Court for a fresh reference of the issue to the Mamlatdar under the amended Section 85 A of the Tenancy Act. Since, in my opinion, Section 85 A is attracted to all pending proceedings, the civil suit which is pending before the Court of the Civil Judge, Junior Division at Kapadvanj is also governed by it. Therefore, though the Mamlatdar did not have jurisdiction at the date when the reference was made to him by the Civil Court at Kapadvanj, he has now the jurisdiction to decide the issue Therefore, the issue must be decided on merits. He has already decided it on merits. Therefore, there is no point in remanding the matter to him. It was the Deputy Collector in appeal who did not decide the question on merits. It would therefore be appropriate to remand the case to him with a direction to decide it on merits.

5. In the result, I allow this petition, set aside the impugned order passed by the Revenue Tribunal and the Deputy Collector and remand the appeal to the Deputy Collector, with a direction that he shall decide it on merits and according to law. Rule is made absolute with no order as to costs in the circumstances of the case.


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