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Bhikhabhaijethabhai and ors. Vs. J.V. Vyas, Additional Collector and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR873
AppellantBhikhabhaijethabhai and ors.
RespondentJ.V. Vyas, Additional Collector and anr.
Cases ReferredDahya Lala v. Rasul Mahomed
Excerpt:
- - the notices were general notices as well as special notices addressed to the landlords and the tenants in respect of the lands. oza invoked the well-known principle of interpretation that exclusion of jurisdiction of the civil court should not be readily inferred. the expression tenant having been defined in section 2(18) to include a person who is deemed to be a tenant under section 4 the question whether a person is a tenant or not would include the question whether a person is or is not deemed to be a tenant under section 4 and the question whether a person is not deemed to be a tenant under section 4 would necessarily involve the further question whether in the case of such a person the conditions of section 4 are or are not satisfied. the mamlatdar would therefore have the.....p.n. bhagwati, j.1. the petitioners are the owners of land bearing s. no. 339 and admeasuring 19 acres and 38 gunthas situate in village vanesa palsana taluka surat district. on 27th june 1939 the land was purported to be sold by the petitioners to one ambelal jaduram for the price of rs. 1261/-. though ostensibly a sale it was in reality a mortgage effected by the petitioners in favour of ambelal jaduram to secure an existing debt to the extent of rs. 1261/-. even after this transaction the possession of the land remained with the petitioners until 1945-46. it appears that the petitioners were unable to pay interest on the mortgage debt to ambelal jaduram and possession of the land was therefore handed over to ambelal jaduram in or about 1946-47. ambelal jaduram thereafter inducted the.....
Judgment:

P.N. Bhagwati, J.

1. The petitioners are the owners of land bearing S. No. 339 and admeasuring 19 Acres and 38 Gunthas situate in village Vanesa Palsana Taluka Surat District. On 27th June 1939 the land was purported to be sold by the petitioners to one Ambelal Jaduram for the price of Rs. 1261/-. Though ostensibly a sale it was in reality a mortgage effected by the petitioners in favour of Ambelal Jaduram to secure an existing debt to the extent of Rs. 1261/-. Even after this transaction the possession of the land remained with the petitioners until 1945-46. It appears that the petitioners were unable to pay interest on the mortgage debt to Ambelal Jaduram and possession of the land was therefore handed over to Ambelal Jaduram in or about 1946-47. Ambelal Jaduram thereafter inducted the 2nd respondent on the land. According to the petitioners it was in July 1951 that the 2nd respondent was brought in as a tenant on the land by Ambelal Jaduram but this was disputed on behalf of the 2nd respondent who alleged that he came as a tenant on the land sometime in 1947. For the purpose of the present petition however it is not necessary to decide this controversy. The land originally formed part of the territories of the quondam Baroda State After the merger of the Baroda State the Bombay Tenancy and Agricultural Lands Act 1948 ( hereinafter referred to as the Tenancy Act) and the Bombay Agricultural Debtors Relief Act 1947 were both applied to the territories of the former Baroda State with effect from 1st August 1949. The petitioners thereafter made an application to the appropriate Court under the Bombay Agricultural Debtors Relief Act 1947 for a declaration that the purported sale of the land in favour of Ambelal Jaduram was in reality a mortgage and for adjustment and redemption of the mortgage debt including recovery of possession of the land from Ambelal Jaduram The application was resisted by Ambelal Jaduram. The Court trying the application held by an order dated 28th March 1957 that the transaction though ostensibly a sale was in fact a mortgage and ordered accounts to be taken in order to ascertain the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage. Ambelal Jaduram was aggrieved by this order passed by the Trial Court and se accordingly preferred an appeal in the District Court Surat. The appeal was dismissed by the District Court Surat on 30th June 1958. It appears that in the meantime accounts were taken between the parties and the amount due and payable by the petitioners to Ambelal Jaduram under the mortgage was ascertained and a final award was passed by the Court on 21st July 1958 under which an order for possession of the land was made in favour of the petitioners on the petitioners paying up the amount so ascertained. The petitioners thereafter paid up the amount mentioned in the final award and claimed possession of the land from Ambelal Jaduram. Since possession of the land was not handed over by Ambelal Jaduram to the petitioners in pursuance of the final award the petitioners made an application on 3rd November 1958 for recovering possession of the land in execution of the final award. At this stage the 2 respondent made an application to the executing Court for being joined as a party respondent to the execution application on the ground that he was in possession of the land as a protected tenant and that possession of the land could not therefore be ordered to be handed over to the petitioners. This objection raised on behalf of the 2nd respondent was negatived by the executing Court which took the view following the decision of the High Court of Bombay in Kanji Kurji v. Kala Gopal 59 Bom. L.R. 846 that even though the 2nd respondent was brought in as a tenant by Ambelal Jaduram yet Ambelal Jaduram being a mortgagee the 2nd respondent could not be regarded as a deemed tenant under Section 4 of the Tenancy Act and his interest ill the land having come to an end on the redemption of the mortgage by the petitioners he was not entitled to continue in possession of the Land as against the petitioners. The executing Court accordingly made an order for issue of a warrant for possession. The 2nd respondent thereupon preferred an appeal in the District Court Surat but after a time he filed a Purshis before the District Court stating that he did not wish to proceed further with the appeal and the appeal was there upon dismissed for want of prosecution. The warrant for possession issued by the executing Court was thereafter executed and possession of the land was handed over to the petitioners on 7th February I960. This was the position which obtained from and after 17th February 1960. In the meantime notices were issued under Section 32d of the Tenancy Act for fixation of the purchase price of lands situate in village Vanesa. The notices were general notices as well as special notices addressed to the landlords and the tenants in respect of the lands. A special notice was addressed to the 2nd respondent in respect of the land in dispute in the present petition since the name of the 2nd respondent continued to appear in the record of rights as a tenant in respect of the land. The petitioners and the 2nd respondent appeared before the Agricultural Lands Tribunal to whom for the sake of brevity we will refer as the Tribunal. I he petitioners contended that the 2nd respondent was not a tenant of the and that it was therefore not necessary to fix the purchase price of the land. This contention was denied by the 2nd respondent. The issue which thus arose before the Tribunal was whether the 2nd respondent was a tenant of the land or not. The petitioners contended that having regard to the decision of the executing Court in B.A.D.R. proceedings the 2nd respondent was not a tenant of the land and could not therefore claim to be a deemed purchaser under the provisions of the Tenancy Act. The 2nd respondent on the other hand contended that he was a deemed tenant within the meaning of Section 4 of the Tenancy Act and that he was therefore a deemed purchaser under the provisions of the Tenancy Act. The Tribunal by an order dated 5th March 1960 held that the decision of the executing Court in B.A.D.R. proceedings was binding on the parties and that in any event the 2nd respondent being a tenant of the mortgagee was not a deemed tenant within the meaning of Section 4 of the Tenancy Act and could not therefore be regarded as a deemed purchaser under the provisions of the Tenancy Act. The Tribunal observed that since the 2nd respondent was not entitled to the right of purchase under the provisions of the Tenancy Act the question of fixing the purchase price did not arise, the 2nd respondent preferred an appeal against this order of the Tribunal before the Additional Collector Surat. The Additional Collector treated the appeal as if it was an appeal against a decision given under Section 70(b) of the Tenancy Act on the question whether the 2nd respondent was a tenant of the land and proceeded to dispose of the appeal on that basis. The Additional Collector took the view that the executing Court had no jurisdiction to decide whether the 2nd respondent was a tenant or not since the jurisdiction to decide that issue was vested exclusively in the Mamlatdar under the provisions of the tenancy Act and that the decision of the executing Court relied on by the petitioners did not therefore stand in the way of the 2nd respondent and that it was open to the Tribunal to decide the question whether and 2nd respondent was a tenant of the land. On the merits of the question the Additional Collector held that until the nature of the document executed by the petitioners in favour of Ambelal Jaduram was finally determined viz. whether it was a mortgage or a sale which happened on 30th June 1955 Ambelal Jaduram was the owner of the land since the document was a document of sale until determined otherwise and that the 2nd respondent being a tenant of Ambelal Jaduram was therefore a tenant of the land on 1st April 1957 and as such became the deemed purchaser of the land under the provisions of the Tenancy Act. The Additional Collector observed that the subsequent adjudication of the document to be a document of mortgage and the redemption of such mortgage by the petitioners could not affect the right of the 2nd respondent to be the deemed purchaser which right vested in him on 1st April 1957. The Additional Collector accordingly held that the 2nd respondent was a tenant of the land on 1st April 1957 and must therefore be deemed to have purchased the land under the provisions of the Tenancy Act and the Tribunal should therefore have proceeded to fix the purchase price under Section 32 of the Tenancy Act. The Additional Collector in the result allowed the appeal set aside the order of the Tribunal and directed the Tribunal to proceed further with the inquiry for fixing the purchase price and also ordered than possession of the land be restored to the 2nd respondent. The petitioners thereupon preferred the present petition in this Court challenging the order of the Additional Collector.

2. Two contentions in the main were advanced by Mr. N.R. Oza learned advocate appearing on behalf of the petitioners in support of the petition. The first contention was that the decision of the executing Court in B.A.D.R. proceedings holding that the 2nd respondent was not a tenant of the land was binding on the parties and that it was not open to the Tribunal or the Additional Collector to examine the question afresh whether the 2nd respondent was a tenant of the land or not. Mr. N.R. Oza also contended that in any event the 2nd respondent not having pursued the appeal preferred by him against the decision of the executing Court the decision of the executing Court had become final and had been accepted by the 2nd respondent as binding upon him and it was therefore no longer open to the 2nd respondent to contend in the present proceedings that he was a tenant of the land. Mr. M.H. Chhatrapati learned advocate appearing on behalf of the 2nd respondent sought to repel this contention by pointing out that the executing Court had no jurisdiction to decide the issue whether the 2nd respondent was a tenant of the land or not such issue being triable exclusively by the Mamlatdar under the provisions of the Tenancy Act and that the decision of the executing Court was therefore a nullity as being a decision of a Court suffering from inherent lack of jurisdiction and that it could not therefore be regarded as binding upon the 2nd respondent so as to preclude the 2nd respondent from being able to agitate the question in the present proceedings. This contention argued Mr. M.H. Chhatrapati also provided a complete answer to the second contention of Mr. N.R. Oza based on the circumstance that the 2nd respondent withdrew the appeal filed by him against the decision of the executing Court and allowed the decision of the executing Court to become final. Mr. M.H. Chhatrapati urged that if the decision of the executing Court was a nullity the 2nd respondent was entitled to ignore it and was not bound to prefer an appeal against it or to have it set aside. It is obvious that the validity of these rival contentions urged on behalf of the parties turned on the question whether the decision of the executing Court was a nullity and it is to the determination of this question that we will now address ourselves.

3. The issue before the executing Court was whether the 2nd respondent was a tenant of the land entitled to the protection of the Tenancy Act. The 2nd respondent claimed to be a deemed tenant under Section 4 of the Tenancy Act. The contention of the 2nd respondent was that as a tenant of the mortgagee he lawfully cultivated the land belonging to the petitioners and that he was therefore a deemed tenant within the meaning of Section 4 of the Tenancy Act. The petitioners combated this contention urged on behalf of the 2nd respondent by pointing out that a tenant of a mortgagee in possession was included in the excepted category of mortgagee in possession given in Clause (c) of Section 4 and that the 2nd respondent could not therefore fall within the scope and ambit of Section 4 even if he was lawfully cultivating the land belonging to the petitioners. The question debated before the executing Court therefore was whether the 2nd respondent came within the scope and purview of Section 4 of the Tenancy Act so as to be a deemed tenant under that section for it was clear that if the 2nd respondent was a deemed tenant under Section 4 he would be a tenant within the meaning of the definition of that term contained in Section 2(18) of the Tenancy Act. Now this question whether the 2nd respondent was a deemed tenant under Section 4 so as to be a tenant within the meaning of Section 2(18) was by reason of the provisions of Section 70(b) read with Section 85 triable exclusively by the Mamlatdar. The executing Court had no jurisdiction to try this question and if the executing Court proceeded to determine it the decision of the executing Court was obviously a nullity.

4. Mr. N.R. Oza sought to escape the consequences of this conclusion by contending that the jurisdiction of the Mamlatdar to decide whether a person is a tenant or not was confined only to the factual aspect and not to the legal aspect of the controversy Where the determination of the question depended on the applicability or interpretation of a provision of the Tenancy Act the Civil Court argued Mr. N.R. Oza had jurisdiction to decide the question and the Mamlatdar had no such jurisdiction. Mr. N.R. Oza invoked the well-known principle of interpretation that exclusion of jurisdiction of the civil Court should not be readily inferred. We may at once point out that we do not for a moment dispute the validity of the principle which requires that exclusion of jurisdiction of the civil Court must not be readily inferred but it must be remembered that jurisdiction of the civil Court can be taken away by the Legislature and where the Court finds that such jurisdiction has been taken away by legislative enactment either by express language or by necessary implication it is the bounden duty of the Court to uphold such exclusion of jurisdiction. Here in express terms Section 85 of the Tenancy Act enacts that the civil Court shall have no jurisdiction to decide or deal with any question which is by or under the Tenancy Act required to be decided or dealt with by the Mamlatdar and under Section 70(b) one of the questions which is required to be decided or dealt with by the Mamlatdar is the question whether a person is a tenant or not. The expression tenant having been defined in Section 2(18) to include a person who is deemed to be a tenant under Section 4 the question whether a person is a tenant or not would include the question whether a person is or is not deemed to be a tenant under Section 4 and the question whether a person is not deemed to be a tenant under Section 4 would necessarily involve the further question whether in the case of such a person the conditions of Section 4 are or are not satisfied. The Mamlatdar would therefore have the power to decide whether in the case of any particular person the conditions specified in Section 4 are satisfied so that such person can be said to be a deemed tenant under that section. In order to come to the decision of the question whether the conditions of Section 4 are or are not satisfied the Mamlatdar would of course have to interpret the provisions of that section and possibly other sections of the Tenancy Act. Mr. N.R. Oza is therefore not right in his contention that the Mamlatdar has no jurisdiction to decide the question whether a person is a tenant or not when the determination of such question depends on the applicability or interpretation of Section 4 or any other provisions of the Tenancy Act and that such jurisdiction rests with the civil Court. So long as the Tenancy Act applies to the land in question the Mamlatdar alone can decide whether a person is a tenant or not irrespective of the fact whether the decision of the question involves merely the determination of facts or also involves the determination of the question relating to the applicability or interpretation of law.

5. Mr. N.R. Oza relied on a decision of a Division Bench of the High Court of Bombay consisting of Chainani J. as he then was and Patel J. in Civil Revision Application No. 120 of 1957 and urged that this decision supported his contention that where the question whether a person is a tenant or not depends on the applicability or interpretation of a provision of the Tenancy Act the civil Court alone has jurisdiction to determine the question. We have carefully examined this decision and we do not find anything in it which supports the contention pressed for our acceptance by Mr. N.R. Oza. All that this decision says is that the civil Court has jurisdiction to decide whether Section 85 of the Tenancy Act applies or not for it is only if Section 85 of the Tenancy Act applies that the jurisdiction of the civil Court to determine whether a person is a tenant or not is excluded. This decision is based upon the well-known principle that a civil Court has inherent power to determine the question of its own jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction over the matter. (See M/s. Bhatia Co-Operative Housing Society Ltd. v. Patel 55 Bom. L.R. 199). If therefore in civil Court a question arises whether Section 85 applies or not so that if Section 85 applies the Mamlatdar alone would have jurisdiction to decide the further question arising in the civil Court viz. whether a person is a tenant or not and if Section 85 does not apply the jurisdiction of the civil Court to decide that question would not be barred the civil Court would have jurisdiction to decide whether Section 85 applies or not That is in our opinion the only effect of this decision. But we do not see how that can possibly help Mr. N.R. Oza in the present case. It is indisputable and was in fact not disputed on behalf of the petitioners that Sections 70(b) and 85 apply in the present case. If Sections 70(b) and 85 apply then obviously the jurisdiction of the civil Court to decide the question whether the 2nd respondent was a tenant of the land or not was excluded and the Mamlatdar alone could decide that question. And if the Mamlatdar had jurisdiction to decide the question whether the 2nd respondent was a tenant of the land or not he had also jurisdiction as we have pointed out above to decide whether the 2nd respondent fell within the scope and ambit of Section 4 and was a deemed tenant under that section. The civil Court had therefore no jurisdiction to decide the issue whether the 2nd respondent was a tenant of the land and the decision of the executing Court was accordingly a nullity.

6. Mr. N.R. Oza also referred to a decision of a Division Bench of the Bombay High Court in Sakharam v. Manikchand 57 Bom. L.O. 223 But that decision does no more than affirm the same principle which was relied on by the Division Bench in Civil Revision Application No. 120 of 1957 to which we have already referred. This decision does not therefore advance the argument of Mr. N.R. Oza any further or in any way militate against the validity of the conclusion which we have reached on this point.

Mr. N.R. Oza also contended that the 2nd respondent raised an issue before the executing Court that the executing Court had no jurisdiction to decide the question whether the 2nd respondent was a tenant of the land and that in any event even if the executing Court had such jurisdiction the 2nd respondent was a tenant of the land. This issue was decided against the 2nd respondent by the executing Court and it therefore operated argued Mr. N.R. Oza as res Judicata in the present proceedings and it was not open to the 2nd respondent to contend in the present proceedings that the executing Court had no jurisdiction to decide the question whether the 2nd respondent was a tenant of the land. This contention is in our view without any substance. We do not see how any decision of a Court which lacks inherent jurisdiction to try the matter can operate as res judicata in a subsequent proceeding. The doctrine of res Judicata is based on estoppel, by record and no estoppel can be created by a nullity. This view which we are inclined to take is too clear to need any discussion and does not require any authority in support of it but if any authority were needed it is found in the decision of the Supreme Court in Mohanlal Goenka v. Benoy Kishna A.I.R. 1953 S.C. 65 where Ghulam Hasan J. approved of the decision of the Allahabad High Court in Lakhmkhand v. Madho Rao 52 All. 868 and held that it was rightly decided in that case that the decree of the Court in the former suit did not operate as res judicata in the subsequent suit between the same parties since there was inherent lack of jurisdiction in the Court to try the case and the decree passed by the Court was therefore null and void. If the decision of the executing Court in the present case was a nullity as being the decision of a Court suffering from inherent want of jurisdiction such decision could not operate as res judicata. The contention of Mr. N.R. Oza invoking the doctrine of res Judicata must therefore fail and be rejected.

What we have said above also disposes of the second contention of Mr. N.R. Oza namely that if the 2nd respondent wanted to escape from the consequences of the decision of the executing Court he should have pursued the appeal preferred by him against that decision and had it set aside. If the decision of the executing Court was a nullity as we have said before it was not necessary for the 2nd respondent to prefer any appeal against it or to take any proceeding to have it set aside. A decision which is a nullity does not create any rights or impose any obligations and does not require to be set aside. To use the expression once used by Lord Macmillan you cannot slay the slain. It is the same reason which appealed to the Executioner in Alice in Wonderland when he refused to execute the Cheshire Cat on the ground that you cannot cut off a head unless there is a body to cut it off from. This argument of Mr. N.R. Oza must also therefore be rejected.

Mr. N.R. Oza then contended that if the executing Court had no jurisdiction to decide the question whether the 2nd respondent was a tenant of the land equally the Tribunal and the Additional Collector had no jurisdiction to decide that question and that in deciding that question the Tribunal and the Additional Collector had arrogated to themselves a jurisdiction which they did not possess. Mr. N.R. Oza urged that as soon as an issue arose before the Tribunal as to whether the 2nd respondent was a tenant of the land the Tribunal should have asked the parties to obtain the necessary determination from the Mamlatdar under the provisions of the Tenancy Act and should not have proceeded to decide that issue for the Tribunal has no such jurisdiction. There is great force in this contention of Mr. N.R. Oza. The Tribunal does not appear to have any jurisdiction to decide the question whether a person is a tenant or not. The only sections in the Tenancy Act which deal with the jurisdiction and procedure of the Tribunal are Sections 67 to 69. Section 67 provides for the constitution of the Tribunal. Section 68 states as to what shall be the duties of the Tribunal. The matters which can be dealt with by the Tribunal are thus set out in Section 68 and these matters do not include the question whether a person is a tenant or not Section 69 sets out the powers of the Tribunal but those powers are powers which can be exercised by the Tribunal in exercising its jurisdiction for the purpose of deciding the matters set out in Section 68. There is therefore nothing in these sections which can possibly be read as investing the Tribunal with jurisdiction to decide the question whether a person is a tenant or not. The jurisdiction to decide that question is vested in the Mamlatdar under Section 70(b). Whenever therefore a question arises before the Tribunal whether a person is a tenant or not the Tribunal cannot decide that question and that question must be decided by the Mamlatdar. This also stands to reason since it could hardly have been intended by the Legislature that there should be two parallel bodies in the same statute having power to decide the same question. It is therefore clear that the Tribunal had no jurisdiction to decide the question whether the 2 respondent was a tenant of the land.

7. Mr. M.H. Chhatrapati however contended that the question whether a person is a tenant or not is a collateral question on the determination of which depends the jurisdiction of the Tribunal to fix the purchase price under Section 32C of the Tenancy Act and that the Tribunal bad therefore jurisdiction to decide whether the 2nd respondent was a tenant of the land in order to be able to be decide whether it had jurisdiction to fix the purchase price under that section. Mr. M.H. Chhatrapati in this connection relied on a decision of the Supreme Court in Ujjam Bai v. State of Uttar Pradesh A.I.R. 1962 S.C. 1621. We are unable to see the applicability of this decision to the present case It is of course axiomatic that if the jurisdiction of a Tribunal depends upon the fulfillment of some condition precedent or upon the existence of some particular fact which is collateral to the actual matter which the Tribunal has to try the Tribunal has jurisdiction to determine such collateral fact it exists or not-though such determination would not be final and binding and would be liable to be impeached. But it is difficult to see how in a case arising under Section 32 the fact that a person is a tenant is a collateral fact on the determination of which depends the jurisdiction of the Tribunal to act under Section 32G The Tribunal is empowered to fix the purchase price under Section 32G when the tenant signifies his willingness to purchase the land. But the Tribunal is certainly not given the power to decide the dispute whether such person is a tenant or not if it is disputed on behalf of the owner of the land that he is such tenant. That power is given only to the Mamlatdar and it is therefore in our opinion not possible to take the view that the Tribunal has the power to decide the question whether a person is a tenant or not in a proceeding under Section 32G. If such a question arises it must be decided by the Mamlatdar under Section 70(b) of the Tenancy Act.

8. If the Tribunal had no jurisdiction to decide the question whether the 2 respondent was a tenant of the land it must equally follow that the Additional Collector in appeal had also no such jurisdiction and the orders of the Tribunal and the Additional Collector must in that event be set aside. Mr. M.H. Chhatrapati however contended that even if this be so we should not interfere in the exercise of our power under Article 227 of the Constitution and he urged three grounds why we should not so interfere. The first ground was that the petitioners had an alternative remedy by way of a revision application before the Revenue Tribunal and that since the petitioners had not availed themselves of the remedy they were not entitled to invoke the jurisdiction of this Court under Article 227. Though ordinarily this ground would be a good ground for refusing to exercise the extraordinary power conferred on this Court under Article 227 it cannot help the 2nd respondent in the present case since what is complained to in the petition is complete lack of jurisdiction in the Tribunal and the Additional Collector to make the orders respectively made by them and not merely the existence of an error of law in those orders. If the Additional Collector has no jurisdiction to decide the question whether the 2nd respondent was a tenant of the land the order would be a nullity and if the order is a nullity the petitioners need not go in revision against the order. Merely because a statute provides for a right of appeal or revision the party against whom the order is made is not bound to appeal or go in revision if the order is a nullity. If the order is a nullity there is no obligation on the party against whom the order is passed to prefer an appeal or a revision application and it cannot be urged as an answer to a petition under Article 227 that the party should have preferred an appeal or a revision application against an order which was a nullity. We cannot therefore refuse to grant relief to the petitioners on this ground urged by Mr. M.H. Chhatrapati.

The second ground urged by Mr. M.H. Chhatrapati was that the petitioners did not raise the question of jurisdiction before the Tribunal but participated in the inquiry held by the Tribunal and took the chance of a decision in their favour Not only that but when the matter went in appeal before the Additional Collector there also argued Mr. M.H. Chhatrapati tine petitioners did not object to the jurisdiction of the Additional Collector to entertain the appeal on the question whether the 2nd respondent was a tenant of the land. All this is true but it cannot afford any answer to the petition when the question raised is a question of total lack of jurisdiction. If the Tribunal and the Additional Collector had no jurisdiction at all to decide the question whether the 2nd respondent was a tenant of the land it is immaterial whether the petitioners raised or did not raise an objection to the jurisdiction of the Tribunal and the Additional Collector at the time when the matter was heard by them for there can be no waiver of objection. Waiver cannot confer jurisdiction where it does not exist. If there is inherent want of jurisdiction as we hold there is in the present case we cannot shut our eyes and refuse to Interfere.

9. The third ground of Mr. M.H. Chhatrapati was that having regard to the decision of the Supreme Court in Dahya Lala v. Rasul Mahomed in Civil Appeal No. 5l6 of 1960 (since reported in 65 Bom. L.R. 328) it was clear that a tenant of a mortgagee in possession was not within the excepted category of mortgagee in possession in Clause (c) of Section 4 and would therefore be a deemed tenant under Section 4 if he was lawfully cultivating the land belonging to the mortgagor and since this was the true position in law as it always existed the decision of the Additional Collector that the 2nd respondent was a tenant of the land was a correct decision and it would therefore be an idle formality on our part to set aside the decision of the Additional Collector on the ground that the Mamlatdar alone had jurisdiction to decide the question since the decision of the Mamlatdar also could not be otherwise. Mr. M.H. Chhatrapati contended that we should not interfere in the exercise of our jurisdiction under Article 227 except in aid of justice and in justice had been done by the Additional Collector as he submitted it was done we should not exercise our powers under Article 227 to set aside the order of the Additional Collector This contention also in our opinion ignores the basic position that what is complained of in the present petition is total lack of jurisdiction on the part of The Tribunal and the Additional Collector. In a case where an order is challenged on the ground of total lack of jurisdiction considerations such as those pointed out by Mr. M.H. Chhatrapati cannot be relevant. Apart from that if the matter goes before the Mamlatdar who alone has jurisdiction to decide the question whether the 2nd respondent was a tenant of the land we cannot say what possible contentions may be urged before him and it would not be right on our part to refuse to interfere with the order made by the Additional Collector on the assumption that such interference would not be in aid of justice.

10. Mr. M.H. Chhatrapati also faintly suggested that the person who constituted the Tribunal would be the same person who would decide the matter even if the matter were held to be triable exclusively by the Mamlatdar under Section 70(b) and that the Additional Collector would be the person having authority to hear an appeal from the order made by such a person under Section 70(b) and that there was therefore no reason to interfere with the order made by the Additional Collector. This is a ground which cannot be sustained. A ground very similar to this did appeal to the Additional Collector when he took the view that the appeal before him should be treated as an appeal against an order made under Section 70(b). But the law cannot countenance such a ground. The same person may occupy both the positions viz. that of a Tribunal under Section 32G and that of a Mamlatdar under Section 70(b) but in one case he would be exercising the jurisdiction of a Tribunal under Section 32d and in the other he would be exercising the jurisdiction of a Mamlatdar under Section 70(b) The two authorities would be entirely distinct and independent authorities possessing distinct and independent jurisdictions and it is no argument to say that merely because the same person might be constituting both the authorities the order of one authority can be equated with the order of the other. The orders would be of the authorities and not of the individual person. Mr. M.H. Chhatrapati is therefore not right in his contention that merely because the same person might be constituting both the authorities and the same person might also hear appeals from the orders of both the authorities we should refuse to exercise our power under Article 227 even if we find that the impugned order was made by an authority which did not have the jurisdiction to make it.

11. In this view of the matter it is clear that the orders of the Tribunal and the Additional Collector were without jurisdiction and must therefore be set aside. Paced with this conclusion Mr. M.H. Chhatrapati submitted that even if we were inclined to set aside the orders of the Tribunal and the Additional Collector we should impose a condition that possession of the land should be restored by the petitioners to the 2nd respondent. The short answer to the submission is that we have no such jurisdiction. Either we set aside the orders of the Tribunal and the Additional Collector in exercise of our power under Article 227 or we refuse to do so. We have no power to impose any condition such as the one suggested by Mr. M.H. Chhatrapati.

12. In the result we allow the petition make the rule absolute set aside the orders passed by the Tribunal and the Additional Collector and direct the Tribunal to dispose of the inquiry before it after the question whether the 2nd respondent was a tenant of the land is finally determined by the relevant authorities under the provisions of the Tenancy Act. The petitioners will take appropriate proceedings before the Mamlatdar for the determination of this question. There will be no order as to costs.


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