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Machi Bhikhabhai Kilabhai Vs. Machiparsottambhai Somabhai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR405
AppellantMachi Bhikhabhai Kilabhai
RespondentMachiparsottambhai Somabhai and ors.
Excerpt:
- - the mamlatdar indeed has the jurisdiction to issue, on being satisfied on materials placed before him in that behalf, a temporary injunction ex-parte. so far as the revenue tribunal was concerned, it was perfectly justified in refusing to entertain the revision application because neither the collector nor the mamlatdar had decided anything which would warrant the entertainment of there vision application and decision on merits without realizing what appropriate procedure should be followed in a matter of this type, both the mamlatdar and the collector have gone on making ex-parte orders and appear to me to have laboured under a total misconception of the procedure to be followed in the matter of exercising power under clause (nb) of section 70 of the tenancy act......fix up any date for hearing of that application in order to enable the landlord to contest the ex-parte temporary injunction which he had issued. that, in my opinion, was a wrong procedure which the mamlatdar followed. the mamlatdar indeed has the jurisdiction to issue, on being satisfied on materials placed before him in that behalf, a temporary injunction ex-parte. however, whenever the mamlatdar issues a temporary injunction ex-parie on the application of the applicant before him, it is always necessary for him to issue notice of that injunction also to the other side and to fix therein the date of hearing of the application for temporary injunction. on the date of hearing which the mamlatdar has fixed or on any other date of hearing which he may fix thereafter he ought to give the.....
Judgment:

S.H. Sheth, J.

1. The petitioner claims to be the tenant in respect of Section No. 30 of village Bhavanpura in Tilakwada Taluka of Baroda District. The land admeasures 2 acres-33 gunthas. He made an application to the Mamlatdar, tilakwada under Section 70(b) of the Bombay tenancy and agricultural lands Act, 1948 (hereinafter referred to as the tenancy Act for the sake of brevity) for a declaration that he is the tenant in respect of the land in question. It appears from the record of the case that he also made in those proceedings an application under Clause (nb) of Section 70 of the tenancy Act for issuing a temporary injunction. The Mamlatdar issued the injunction on 30th January, 1974 and restrained Respondent No. 1 from interfering with the petitioners possession of the land in question. Respondent No. 1 appealed to the Collector against that order. The Deputy Collector, Dabhoi admitted the appeal and made on 7th February, 1974 an interim order staying the operation of the injunction issued by the Mamlatdar. Against that decision the tenant applied to the Gujarat revenue tribunal in revision. The revenue tribunal did not entertain the revision application because the Deputy Collector had decided nothing on merits and directed the petitioner to approach the Collector and to have his appeal finally decided.

2. At is against that order of the Revenue Tribunal that this petition is filed by the petitioner. This petition discloses a strange course of interlocutory proceedings. Clause (nb) has been inserted in Section 70 of the tenancy Act by Gujarat Act 5 of 1973. It empowers the Mamlatdar to issue temporary injunction in cases instituted before him under the tenancy Act. What happened in the instant case was that the Mamlatdar on receipt of an application from the tenant praying for issuance of a temporary injunction issued it ex-parte. It appears that he did not issue notice of that injunction to the landlord nor did he fix up any date for hearing of that application in order to enable the landlord to contest the ex-parte temporary injunction which he had issued. That, in my opinion, was a wrong procedure which the Mamlatdar followed. The Mamlatdar indeed has the jurisdiction to issue, on being satisfied on materials placed before him in that behalf, a temporary injunction ex-parte. However, whenever the Mamlatdar issues a temporary injunction ex-parie on the application of the applicant before him, it is always necessary for him to issue notice of that injunction also to the other side and to fix therein the date of hearing of the application for temporary injunction. On the date of hearing which the Mamlatdar has fixed or on any other date of hearing which he may fix thereafter he ought to give the otherside an opportunity to place such material before him in opposition to the ex-parte temporary injunction issued by him, if the other party has such material. He is thereafter required to hear both the applicant and the opponent and then decide whether the temporary injunction issued by him ex-parte on the application made to him by the applicant should either be confirmed or vacated. It is open to him, after having considered all the material placed before him and after having heard both the parties, either to confirm the ex-parte temporary injunction or to vacate it. In the instant case, the Mamlatdar did not follow this procedure. It, therefore, necessarily gave rise to an appeal to the Collector really speaking by issuing an ex-parte temporary injunction the Mamlatdar had decided nothing against which an appeal could lie to the Collector the Collector was, therefore, wrong in entertaining the appeal and staying ex-parte the operation of the temporary injunction which in its turn was issued ex-parte by the Mamlatdar. So far as the revenue tribunal was concerned, it was perfectly justified in refusing to entertain the revision application because neither the Collector nor the Mamlatdar had decided anything which would warrant the entertainment of there vision application and decision on merits without realizing what appropriate procedure should be followed in a matter of this type, both the Mamlatdar and the Collector have gone on making ex-parte orders and appear to me to have laboured under a total misconception of the procedure to be followed in the matter of exercising power under Clause (nb) of Section 70 of the tenancy Act. The Revenue Tribunal while justifiably refusing to entertain the revision application ought to have pointed out to the Mamlatdar and the Collector the procedure which they should have followed in a matter of this type. So far as the order of the Revenue Tribunal is concerned, it does not suffer from any infirmity whatsoever. I, therefore, confirm it. However, it is necessary to give certain directions to the Mamlatdar in this matter. If the Mamlatdar has not issued any notice of temporary injunction to the landlord he shall immediately do so, hear both the tenant and the landlord in the matter of ex-parte temporary injunction issued by him and then decide on materials placed before him whether the temporary injunction should be confirmed or vacated it is hardly necessary forme to add that the Mamlatdar has ample jurisdiction to either vacate or confirm the ex-parte temporary injunction issued by him. So far as the appeal entertained by the Deputy - Collector is concerned, in my opinion, it is thoroughly useless.

3. Subject to the directions which I have given to the Mamlatdar this petition fails and is dismissed. Rule is discharged with no order as to costs in the circumstances of the case.


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