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Desai Navinkant Kesarlal and ors. Vs. Prabhat Kabhai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR694
AppellantDesai Navinkant Kesarlal and ors.
RespondentPrabhat Kabhai and ors.
Cases ReferredR.L. Arora v. State of Uttar Pradesh
Excerpt:
- - therefore, the original order passed by the aval karkun on the 28th of december 1958 stands good and the original entry in die record of rights that the tenants were permanent tenants, which was deleted by that order cannot be revised and had no effect or force in law. this principle is well established and though a number of decisions were cited before us, it will be sufficient to refer to only two of them. it is not only a proceeding under the provisions of the code which would have that effect but any other legal proceeding like a suit or an application under the tenancy act, which proceedings were available to the parties to challenge the fact of the tenant being not a permanent tenant, would have the same effect on the content of the said entry. it is difficult indeed to.....n.k. vakil, j.1. this is a group of 12 special civil applications nos. 88 to 99 of 1964 wherein facts are similar and common questions of law are raised, and will all be dealt with and disposed of by this common judgment. all the petitioners in this group of petitions are ex-inamdars of khandoli village in kalol taluka of district panch mahals. the bombay personal inam abolition act, 1952, was applied to this inam village in 1955. but before that, record of rights was prepared and was promulgated on the 29th april 1954. it is the case of the petitioners that a large number of tenants of the petitioners were arbitrarily shown as 'permanent tenants' in the said record of rights even though they could not be held to be 'permanent tenants' within the meaning of the provisions of the bombay.....
Judgment:

N.K. Vakil, J.

1. This is a group of 12 Special Civil Applications Nos. 88 to 99 of 1964 wherein facts are similar and common questions of law are raised, and will all be dealt with and disposed of by this common judgment. All the petitioners in this group of petitions are Ex-Inamdars of Khandoli village in Kalol Taluka of District Panch Mahals. The Bombay Personal Inam Abolition Act, 1952, was applied to this inam village in 1955. But before that, Record of Rights was prepared and was promulgated on the 29th April 1954. It is the case of the petitioners that a large number of tenants of the petitioners were arbitrarily shown as 'permanent tenants' in the said record of rights even though they could not be held to be 'permanent tenants' within the meaning of the provisions of the Bombay Land Revenue Code, and the 12 tenants who are opponents Nos. 1 in the respective petitions before us were also entered as permanent tenants in the said record of rights. On behalf of the petitioners this entry made in the record of rights was challenged by an application dated the 30th of July 1954. This application was addressed to the Mamlatdar but it was filed before the Extra Aval Karkun. By the said application, the petitioners tried to contend that the 167 tenants of theirs, including these 12 tenants, were not permanent tenants and the entry noting them as permanent tenants was wrong and incorrect. This application, however, was not disposed of till the 28th of December 1958 and, on that day, the Aval Karkun decided, after going through the merits of the case, that the tenants were not permanent tenants as the starting point of the tenancy of each of the tenants could be determined and that neither of these tenants was a mulganidar or a mirasdar nor any of them was holding the land on a permanent basis by the orders of any competent Court. It was further held that none of the tenants was registered as a permanent tenant in any record recognised by the Government. He, therefore, ordered that the tenants should be shown in the record of rights not as 'permanent tenants' but as tenants of other categories. No appeal was filed against this order of the Aval Karkun, but it appears that some miscellaneous applications were filed by some of the tenants to the Mamlatdar, Kalol, and the Mamlatdar appears to have referred the matter to the Collector and the Collector, in his turn, had referred the matter to the Commissioner, Baroda Division. The Commissioner, Baroda Division, without going into the merits of the case, set aside the order of the Aval Karkun purporting to act under his revisional jurisdiction under Rule 108(6) of the rules framed under the Bombay Land Revenue Code thereinafter referred to as 'the Code'). The Commissioner passed his first order in respect to it on the 5th of September 1961. He not only annulled the order of the Aval Karkun but further directed that the Mamlatdar, Kalol, should decide the dispute under Section 5 of the Bombay Personal Inam Abolition Act, 1952, read with Section 6 of the Bombay Land Tenure Abolition Laws (Amendment) Act, 57 of 1958, as the village in which the lands were situated was Ex-personal inam village. Thereafter, the Commissioner by his another order of the 17th February 1962, which purported to substitute the prior order that he had passed, further directed that the aggrieved parties may approach proper Court or may take recourse to available remedy if so advised. It is the case of the petitioners that the said order was passed by the Commissioner in compliance with the instructions issued by the Government of Bombay by their Circular dated the 9th September 1957, whereby the Government had directed that if any party challenged the entries ill the record of rights pertaining to the status of the tenant, such party should be directed to apply to the Mamlatdar under Section 71 read with Section 70(b) of the Tenancy Act for determining tenancy rights. By the said circular, the Government had taken the view that it would be open to the Mamlatdar to decide the status of the tenant and if the entry in the record of rights was found to be incorrect, that entry would have to be corrected with retrospective effect. A copy of the said circular has been produced and annexed as Annexure 'D' to the petition. Thereafter the petitioners filed an application dated the 4th of September 1962 before the Extra Aval Karkun at Kalol, under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1943 (hereinafter referred to as the Tenancy Act). The Aval Karkun, after hearing the parties and examining the evidence adduced by all the parties, decided that the tenants including 12 tenants with whom we are concerned in these petitions, were not permanent tenants but were only protected tenants and he directed that the names of these tenants should be accordingly entered as protected tenants in the record of rights. The tenants, being aggrieved by the said order, filed appeals before the Assistant Collector, Godhra. The said officer refused to go into the merits of the question of the status of the tenants and took the view that the said tenants were permanent tenants as their names were entered in the record of rights as permanent tenants and, accordingly, on the 31st December 1962 he allowed the appeals holding each of the 12 tenants to be permanent tenants.

2. The petitioners being aggrieved by the said order filed revision appli cations before the Gujarat Revenue Tribunal under Section 76 of the Tenancy Act against the said order passed by the Assistant Collector. The Tribunal decided the matter on the 2nd of August 1963 and dismissed the application of the petitioners holding that the tenants were permanent tenants in view of the inclusive part of the definition given by Sub-section 10A of Section 2 of the Tenancy Act. But it would be important to note at this stage that the Tribunal also give its considered opinion on the factual aspect and held that so far as the tenants rights were concerned, they had not succeeded in establishing that they were either permanent tenants, in fact falling either under the provision of Clause (a) of Sub-section (10A) or the first part of Clause (b) of the said substation. The petitioners being aggrieved by this decision have filed these 12 petitions.

3. On behalf of the petitioners in all the matters the following broad submissions weremade before us in support of the petitions and we shall deal with them in the same order:

(1) The definition does not apply to a case where a dispute about the correctness of the entry had already been raised before the 1st of August 1956 and steps were taken to have the question decided.

(2) The definition does not take away the right of any person to challenge the validity of the entry.

(3) If it is held that the definition takes away such a right or it applies to a case where there was a dispute existing, it is void because it violates Articles 14, 19 and 31 of the Constitution and it is not saved by Article 31(a).

4. The first submission raised the question of construction of Sub-section (10A) of Section 2 of the Tenancy Act which gives the definition of permanent tenant. This definition of permanent tenant was introduced by the Amending Act 13 of 1956 in the Bombay Tenancy Act and It is as follows:

2. In this Act, unless there is anything repugnant in the subject or context.

XX XX XX XX XX XX(10A) 'permanent tenant' means a person

(a) who immediately before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 (hereinafter called 'the Amending Act, 1955'),-

(i) holds land as mulganidar or mirasdar; or

(ii) by custom, agreement, or the decree or order of a Court holds the land on lease permanently; or

(b) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity;

and includes a tenants whose name or the name of whose predecessor-in-title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant immediately before the commencement of the Amending Act, 1955.

5. As we have seen, the Tribunal came to the conclusion that these tenants could be held to be permanent tenants by the mere fact of their coming within the ambit of the inclusive part of the definition in the latter part of Clause (b), yet, at the same time, the Tribunal came to the conclusion that there was no case established by the tenants to hold them to be permanent tenants either under Clause (a) or the first part of Clause (b). We are, therefore, concerned in these matters only with the question as to what exactly is the meaning and amplitude of the words 'and includes a tenant whose name or the name of whose predecessor - in - title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant immediately before the commencement of the Amending Act, 1955.' The Amending Act 13 of 1956 came into force on the 1st of August 1956. It may further be noted that the assent of the President was given to this Act on the 13th of March 1956. It was published in the Gazette on the 23rd of March 1956 and then was put into force on the 1st of August 1956 by notification. On behalf of the petitioners, the learned advocate Mr. C.T. Daru submitted that the words aforesaid which constituted the inclusive part of the definition should not be literally construed. These words cannot be read to mean that the mere physical existence of the names in the record of rights would be sufficient; they must be read to connote a correct and final entry noting the names of the tenants as permanent tenants in the record of rights. Where, therefore, a dispute about the correctness of the contents of the entry had been raised by the tenure holders and legal proceedings before the competent authority were pending on the 1st of August 1956 to decide such a dispute, the entry could not be said to be a correct final entry. In other words, in the eye of law, under such circumstances, the name of the tenant cannot be said to have been finally and correctly entered in the record of rights or any other revenue records or any other public record immediately before the commencement of the Amending Act. In short, the contention was that if the dispute was raised that the tenant was not a permanent tenant and legal proceedings before a competent authority was taken before the 1st of August 1956, then the inclusive part of the definition would not have any application. It was further submitted that in this case the petitioners had filed their application dated the 30th of July 1954 addressing it to the Mamlatdar and therein had raised the dispute as regards the tenants being not permanent tenants and the names of these tenants having been wrongly included in the record of rights. The Aval Karkun to whom the matters were entrusted, decided the matter in 1958 declaring that the tenants were not permanent tenants. The effect of this declaration was to nullify the wrong entry in the record of rights. Not only that, but as a consequence of the order, the entry showing the tenants to be permanent tenants was actually deleted and they were shown as protected tenants. No appeals were filed by the tenants. However, the Commissioner, Baroda Division, by his order dated 8th of September 1961, as modified by his order dated 17th of February 1962, purporting to act under his revisional jurisdiction under Rule 108(6) under the Bombay Land Revenue Code, set aside the order of the Aval Karkun without entering into merits and directed the petitioners to approach an appropriate Court or take recourse to available remedy if advised. It was contended on behalf of the petitioners, relying on these facts, that die order dated 28th of December 1958 of the Aval Karkun having been made under his powers under the Tenancy Act, must be considered to have been made under Section 70(b) of the Tenancy Act and the Commissioner had no jurisdiction whatever to revise that order under Sub-rule (6) of Rule 108. That order could have been set aside only in appeal by the Collector or by the Revenue Tribunal under its revisional jurisdiction given to them under the Tenancy Act. Therefore, the original order passed by the Aval Karkun on the 28th of December 1958 stands good and the original entry in die record of rights that the tenants were permanent tenants, which was deleted by that order cannot be revised and had no effect or force in law. The Tribunal's judgment and the order, therefore, which held mat the tenants were permanent tenants, placing reliance on die said entry and consequently on the inclusive definition of permanent tenant, was patently erroneous.

6. There are two more groups of 11 Special Civil Applications Nos. 428 of 1965 to 438 of 1965 and of 13 Special Civil Applications No. 439 to 448 of 1965 and Nos. 655 to 657 of 1964 in which the facts are similar and the question of law that arise for decision are also similar. They have been kept for hearing with the present group and have been heard together. Mr. M.D. Pandya, the learned advocate, represents all the petitioners in die second group consisting of 11 matters and the Acting Advocate General Mr. K.H. Kaji appears for the State in one of die representative petitions in the group of 11 special civil applications. The tenants, though served, have not appeared before us. Similarly, in the dhud group of petitions, Mr. B.R. Shah appears for all die petitioners and the learned Acting Advocate General appears in one of those petitions for the State. Mr. C.C. Patel has appeared for die tenants in some of those petitions and Mr. M.M. Shah for die tenants in some other of those petitions. We have, therefore, permitted these learned advocates to intervene on common points of law while hearing die present group of petitions.

7. Mr. Pandya and Mr. B.R. Shah on behalf of the petitioners in those groups on the construction of die inclusive part of the definition of Sub-section 10A have canvassed for a wider interpretation then was tried for by Mr. Daru. They have contended that the entry must be correct final entry in the sens 9 that it is not liable to be challenged under any law for the time being in force and such a challenge could be levelled before or after the 1st of August 1956. The proceedings need not be taken before the 1st of August 1936 and even if the proceedings are taken at any time after that date, provided they are within limitation and legally maintainable, it would reader the inclusive definition ineffective. It was urged that the definition is a provision of law of such a nature that the proper canon of construction to be adopted, is that the spirit behind this statutory provision must prevail over the language. They have made some further submissions on this aspect which we shall refer to at its proper place.

8. As against these submissions on behalf of the petitioners, the learned Acting Advocate General who appears in the present group of petitions for the Commissioner, Baroda Division, submitted that the question that requires examination was whether the aforesaid words in the inclusive definition of 'permanent tenant' in Clause (b) of Sub-section (10A) of Section 2 are meant to include ail entries that physically are to be found existing in the record of rights or only those which can be said to be valid and having finality. He conceded that the aforesaid words must mean and can take into their ambit only the entry in which the names are validly and finally entered in the record of rights. But he qualified this submission by making a further submission that the validity and finality is to be decided only under the provisions of the Land Revenue Code or the requirement of the public record of which the entry is under examination and not beyond it. The entry need be correctly and finally made under the machinery of the Code or the relevant public record. In the present case, as we are concerned with an entry made in the record of rights, what is intended is that once the entry is correctly made and receives finality under the provisions of the Code, then that entry must govern the definition. He made one more concession that if an appeal or revision proceedings under the Code were pending, the entry could not be treated as final or correct but it would receive finality as to its existence and correctness only on being finally so adjudged. But he contended firstly that this question of finality could not take into its ambit suits or other proceedings de hors the Code. These proceedings cannot be for correcting, deleting or inserting entries in the record of rights as Section 135(L) of the Code lays down that no suit can be filed against Government or its servants to have an entry inserted, removed or amended in the record of rights or register of mutations. A civil suit or a proceeding under Section 70(b) of the Tenancy Act can be filed only for the declaration of the status of the tenant or other civil right of the party in respect of tenancy, but these are neither proceedings for removal, insertion or correction of entries in the record of rights. He further contended that though under Section 135(H) of the Code, the decision of a civil Court or a suit under the Mamlatdars' Courts Act, will have an indirect effect on correcting the entry in consonance therewith, still these proceedings are not under the Code nor are they continuations of any proceedings under the Code. When, after the 1st of August 1955 the question arises as to whether a tenant is a permanent tenant or not, the authority deciding the question has merely to see whether the entry is final on that day or is liable to be corrected or changed as a result of any pending proceeding under the Code and nothing further. His second contention in support of his submission was that, even assuming that by virtue of Section 135(H), as the decision on a civil suit compels the revenue authority to change or correct the entry, a pending civil suit could be treated on a par with pending proceedings under the Code itself. This principle, however, cannot be further extended to any pending proceeding that cannot fall within the purview of Section 135(H), the reason being that there the revenue authority is not bound to delete or change an entry despite the decision and though the decision may have the effect of declaring the contents of the entry to be false or illegal, the entry will still stand in the record of rights physically. At the most the effect of such a decision would be to destroy the presumptive value of that entry given under Section 135(J) of the Code and every time anyone tried to rely on such an entry and the presumption arising under Section 135(J) the production of the decision may be necessitated and the entry would lose its presumotive value in that proceeding. But all the same, the entry will still physically continue to be there, and so long as the entry remains, it must govern the definition under Sub-section (10A) of Section 2.

9. We have further to mention that the learned Acting Advocate General, in order to support his submissions, and particularly to show that the entry in the record of rights becomes final at the particular stage for the purpose of the Code, took us through the scheme of the sections of the Code and relevant rules that affect the preparation and maintenance of record of rights and the machinery and the manner in which the entry can be made, challenged, altered or corrected. It was urged that it was open to the petitioners to challenge the alleged wrong entry by an application under the Code before the record of rights was finally promulgated and if that was not done and the entry was not finalised between the parties, it was also open to them to challenge the entry even after the record of rights was promulgated. It was further suggested that the application of the 20th July 1965 given by the petitioner must be treated to have been given under the Code and not under the Tenancy Act and, therefore, the Commissioner had the authority to set aside the order made by the Aval Karkun under his revisional jurisdiction given to him by Rule 108(6).

10. Mr. C.G. Shastri, the learned advocate for the tenants has gone to the other extreme in construing the relevant part of the definition of permanent tenant and could not agree with the learned Advocate General that the words of the inclusive definition would not include all the entries made in the record of rights but would include only those entries by which names were validly and finally entered under the machinery of the Code. Mr. Shastri tried to canvass for the very narrow construction and urged that the Tribunal's interpretation that the mere physical fact of the entry in the record of rights was enough and nothing else is intended to be taken into account is correct. It was argued by him that there were two aspects on which he based his submissions. Firstly, that if the definition were intended to apply only to entries which were lawfully entered and made final in the record of rights, there was nothing to prevent the Legislature from using the word 'lawfully' or 'finally' before the word 'entered' in the inclusive part of the definition. If the Legislature had intended that entries would be open to challenge on the ground of finality or validity, then it would have used some such words in the definition. Secondly, there is intrinsic evidence in the words of the inclusive definition itself. There the entry not only in the record of rights but also in any other revenue record or public record is to be taken to establish the status of permanent tenancy of the tenants. It may happen that there are conflicting entries in these different records. In order to meet such a situation, the Legislature seems to have intended that the mere physical fact of entry in either of them as permanent tenant despite the other contrary entry will be sufficient to make him a permanent tenant and the Legislature intended that no further inquiry would be open to prove to the contrary. It was argued that the intention of the Legislature was to give benefit to the tenant and a rule of thumb was introduced which has also nexus with the object of the Act. In the third group, Mr. G.C. Patel and Mr. M.M. Shah on behalf of the tenants have supported the construction canvassed for by Mr. Shastri.

11. These are the rival contentions of the parties on the construction of the aforesaid words of the definition of permanent tenant. We may first proceed to examine the merits of the submission on behalf of the tenants. It is difficult indeed to subscribe to the view taken by the Tribunal or the learned advocates for the tenants. Mr. Shastri's reasoning that if the Legislature intended to give effect to only valid or correct entries, it would have added some such word as 'valid' or 'final' before the word 'entered' to indicate such an intention, has no force. It would not be proper or justifiable to ascribe to the Legislature an intention to make the definition applicable even to entries which were not valid. The learned Acting Advocate General had frankly conceded that the entry to be effective must certainly be valid or otherwise in law it is non est. It simply does not exist in the eye of law. Again, if Mr. Shastri's submission were to be accepted, it would mean that entries which were made in flagrant disregard to procedure or mandatory requirement of law or even by fraud, forgery or committing any other offence or even against the decision reached by Civil Courts to the contrary before the entry was made, would also be effective for the inclusive part of the definition. Mr. Shastri found it impossible indeed to accept this position and he was driven to concede that it would not be proper to impute such an intention to a law making body. But then he suggested that to obviate such a position, the Court may only read into the definition, the words 'in due course of business' before the word 'entered'. Implicit in this argument of Mr. Shastri then is the concession that the provision is not to be literally interpreted and some words are to be read in it. We see no reason indeed to read only words of such limited connotation or to hold that the Legislature would not intend that the entry must be a valid' and 'final' entry to have any effect. The second aspect urged by Mr. Shastri also has no substance. The language cannot and does not appear to us to indicate the intention of the Legislature to make the mere physical fact of the entry sufficient to make it effective for the definition. Even supposing, conflicting entries were there in different records and if only the entry in the record of rights alone was mentioned in the definition, still to our mind it will have the same effect, that is to say, despite a contrary entry in any other record, the entry in the record of rights will prevail. There fore, the mention of three kinds of records make no difference of the sort suggested by Mr. Shastri. We are not prepared to accept Mr. Shastri's suggestion that to benefit the tenant, the Legislature introduced a rule of the thumb that the mere physical existence of the entry could be taken to be conclusive fact of the person being a permanent tenant, whether such an entry was valid or not. We have shown that such a rule of the thumb would go to make effective, entries made by fraud, committing of an offence, or even against decisions of civil Courts as is the case in one of the groups of petitions before us, as we shall point out at its proper place. We have, therefore, no hesitation in rejecting Mr. Shastri's submissions on this point. The argument of the learned Advocate General and the advocates for the petitioners before us implies the concession that the relevant provision is not to be literally construed and the Court has to travel beyond the language of the provision to ascertain the true meaning and content of that provision. The controversy between them is about the extent of the liberal construction to be placed. In our judgment, the construction canvassed for by Mr. Pandya and Mr. B.R. Shah prima facie appears to be too wide, but as we shall point out, we do not propose to reach a decision on this aspect. The one placed by the learned Advocate General, to our mind, is too narrow a construction to be placed. The construction put by Mr. Daru, in our view, is correct and should be given effect to and now we proceed to give our reasons for coming to this conclusion.

12. The object and purpose of all construction or interpretation is to ascertain the intention of the Legislature and to make it effective. True it is that the basic principle is that if the language is plain and certain, the bare reading suffices. But situations do arise when the other canons of construction have to be resorted to ascertain the true legislative intent and content of the provision of law. This principle is well established and though a number of decisions were cited before us, it will be sufficient to refer to only two of them.

13. Tirath Singh v. Bachittar Singh and Ors. : [1955]2SCR457 , it has been laid down that where the language of a statute, in its ordinary meaning and grammatical Construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.

14. Similarly in R.L. Arora v. State of Uttar Pradesh : [1964]6SCR784 , the following principle has been laid down that a literal interpretation is not always the only interpretation of a provision In a statute and the Court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used in a provision of the statute.

15. Keeping these principles of construction in mind and other reasons indicated by us, we have rejected the construction tried to be placed by the learned Advocates on behalf of the tenants. We now turn to the problem before us as regards the different constructions put by the learned advocates for the petitioners and the learned Advocate General. Mr. Pandya's argument to which we have referred amounts to the submission that despite the words in the latter part of Clause (b) of Sub-section (10A) of Section 2, making the definition an inclusive one, it is open to the tenure holder to challenge the entry in the record of rights at any time whenever his right to that land is threatened in any manner by the existence of such entries irrespective of the fact that the challenge is made before or after Sub-section (10A) came into force and the tenure holder can prove that though the name of the tenant exists in the record of rights as a permanent tenant, he is not a tenant in fact, having regard to Clause (a) or the first part of Clause (b) of Sub-section (10A) itself. On the other hand it was contended by Mr. Kaji and also by Mr. Shastri that such a construction if were placed, the whole of the provision providing the inclusive part of the definition becomes redundant and the Legislature will have to be taken to have resorted to mere tautology. We, however, do not find it necessary to decide this question here whether this wider interpretation which is canvassed for by Mr. Pandya and Mr. B.R. Shah is correct or not because, as we shall indicate at the appropriate place, we can dispose of these group of petitions on other grounds without, being called upon to resolve this controversy.

16. We would now consider the interpretation tried to be placed on the relevant part of the provision by the learned Acting Advocate General. In our view, there is no justification for coming to the conclusion that the intention of the Legislature could be to make the entry 'final' subject only to the pending proceedings under the Land Revenue Code and not also to any other proceeding under any law, before a competent authority. The learned Advocate General frankly conceded that the entry must be a valid entry to receive recognition or even finality. It is also important to note that the inclusive definition does not contemplate its application where the name is entered only in the record of rights under the Code or revenue records but also where it is entered in any other public document. Such a public document kept under some provision may not even have its own procedure to challenge the validity or correctness by making an application, appeal or revision and may leave the party to its remedy under the general law of the land. If contents of the entry in the record of rights were to be challenged before the 1st of August 1956 by a proceeding legally available to the party, the correctness thereof would be a matter, sub-judice and till finally decided, in the eye of law, there can be no finality as to its effective existence or correctness. It is not only a proceeding under the provisions of the Code which would have that effect but any other legal proceeding like a suit or an application under the Tenancy Act, which proceedings were available to the parties to challenge the fact of the tenant being not a permanent tenant, would have the same effect on the content of the said entry. In support of his submissions, the learned Advocate General had pointed out Section 13SL of the Code which prohibits any suit against Government or any officer to have an entry made in the record of rights or mutation register or to have any such entry deleted or amended. It also provides that the correction of entry will be inquired into and the particulars thereof revised in accordance with rules by revenue officers which may be prescribed. That is true, but at the same time one cannot run away from the fact that the necessary effect of a challenge to the status of the tenant in a suit or under Section 70(b) of the Tenancy Act is the same or even more far reaching; that is to say, to make the contents of that entry in the record of rights or a public record nugatory and without any force of law. The definite and direct effect of a decision in the civil suit or application under the Tenancy Act where it is held that the tenant is not a permanent tenant on the content of the entry, would be to deprive the entry of its correctness and vigour. In the first place, in our view it is not the fact of the physical entry remaining on the record that counts or matters. It is the fact as to whether its content has any binding effect or vigour of its own that matters. It is difficult indeed to believe that on the day the amending Act came into force, if the status of the tenant and consequently the entry was already a matter of challenge in a legal proceeding of the nature the final decision whereof could make it non-existant in effect and deprive it of force of law, such proceedings were not intended by the Legislature to be on a par with the proceedings under Land Revenue Code which could at best, before that date, give only a presumptive evidentiary value to such entries in the record of of rights. It is true that the object and purpose of the Legislature when it added the aforesaid words by introducing the definition of permanent tenant in the Tenancy Act, was to make the entry conclusive and final at some stage and preclude the landlord from challenging the status of the tenant that he was not a permanent tenant after that stage. But the question is, which is that stage. The learned Advocate General conceded that that stage would be when the entry can be said to be final, but confined the giving of the finality to the proceeding under the Code only, the reason according to him being that the correctness of the entry could be challenged and its deletion could be ordered only by a proceeding under the Code as contemplated by Section 135L, of the Code. But, in our view, the object is not to preserve the physical fact of the entry in the record of rights but to preserve the particular character of the status of the tenant for all times after the amendment and the curtailment of the rights of the landlord vis-a-vis his tenants in respect of his land. The status and the nature of the tenancy of the tenant could be challenged before that date by a suit or an application under Section 70(b) of the Tenancy Act and if a proceeding of either nature was pending in a competent Court challenging that status or character, in our view, on the very reasoning of the learned Advocate General, there can be no finality attached to it being a matter sub-judice, and when the matter is concluded by a decision in appeal or revision, if any, the decision will relate back to the date when the proceeding was started on any day before the 1st of August 1956. We, therefore, cannot accept the submission that the Legislature intended not to affect pending proceedings only under the Code or the public record, as the case may be, under which at best a presumption was attached to the entry, but intended to affect adversely by the amendment, pending proceedings which were competent under any other provision of law which would finally and effectively decide the rights of parties. In our view, the Legislature cannot reasonably be imputed any intention to so discriminate between legal proceedings available to the parties. There is no valid or cogent reason that we can visualise as to why and how a decision reached in a pending proceeding, other than the one under the Code, with any reasonableness could be differentiated from the one under the Code, as the ultimate effect on the content of the entry is the same or more far reaching, that is to say, on the status of the tenant and the character of his tenancy and that too conclusively. What matters is not the mere physical fact of the existence of the entry being there in the record of rights or any other public record, but the effective existence thereof. The physical act of entering the name or deletion thereof is a mere mechanical process which follows the decision of the competent authority. In our view, it would not be reasonable to hold that a record which was only a piece of evidence, would from 1-8-1956 suddenly become conclusive evidence, to such an extent as to take away finally the existing right of the land holders even when the correctness or validity of the contents thereof was being effectively agitated before a competent Court of law and was already a matter sub-judice. Of course, the pending proceeding must be some proceeding the direct consequence whereof would be to nullify the value of the entry. When such proceedings are pending before a competent authority, obviously there would be no finality attached to the subject-matter of such entry. It is also to be remembered that by this amendment, when the definition is introduced it does not merely introduce a new rule of evidence, it also directly affects the vested rights of the tenure holder in respect of his immovable property and creates a new right in favour of the tenant to be considered a permanent tenant though, in fact, under the existing law he was not a permanent tenant. In such circumstances retrospective operation cannot be given to the status unless the intention of the Legislature that it should be so construed is expressed or can necessarily be implied. Again, the effect of this new provision of law is also to convert an act wrongfully done, that is to say which was not a correct act, though not necessarily an invalid one, into a legal act and to deprive the person injured of the remedy which the law then gave him. It would all the more be difficult to believe that such a provision the Legislature would intend to apply to a proceeding already pending wherein the wrongful act or determination of the right is being agitated.

17. It was alternatively urged by the learned Advocate General as pointed out that it may be that the pending civil suit the decision whereof will affect the entry under the force of Section 135H may stand on the same footing as the pending proceeding under the Code, but the same, cannot be said of the proceeding under Section 70(b) of the Tenancy Act unless it could be said to be a suit under the Mamlatdars' Courts Act as Section 135H also contemplates such a suit to fall within its ambit. The learned Advocate General was of the view that looking to the provisions of Sections 71 and 72 of the Tenancy Act and the fiction created therein, the proceedings could be considered to be a suit to which the provisions of the Mamlatdars' Courts Act, 1906 apply. The learned advocates for the tenants, however, contended that it could not be so considered as only the procedure of the Mamlatdars' Courts Act is made applicable to the proceedings under Section 70(b). We do not propose to solve this controversy. In this matter it is not absolutely necessary for us to decide in the view that we are taking in this and the other two groups of matters. We are unable, however, to accept the submission of learned Advocate General that if the proceeding under Section 70(b) cannot be taken to fall within the ambit of Section 135H, despite the decision under Section 70(b) that the tenants are not permanent tenants, the entry can still remain and the revenue authority will not be bound to remove such an entry and the entry would thus continue to give it the prima facie presumptive value. It would be in direct conflict with the correct position in law and would represent definitely a falsehood. Sub-section (3) of Section 135H is as follows:

(3) After the disposal of any case in which a certified copy of any such entry has been recorded, the Court shall communicate to the Collector any error appearing in such entry and any alteration therein that may be required by reason of the decree or order, and a copy of such communication shall be kept with the record. The Collector shall in such case cause the entry to be corrected in accordance with the decree or decision of the Court, so far as it adjudicates upon any right required to be entered in the record of rights, register of mutations or register of tenancies. The provisions of this subsection shall apply also to an appellate or revisional Court, provided that, in the case of an appellate or revisional decree or order passed by the High Court, the communication shall be made by the Court from which the appeal lay or the record was called for.

In our judgment, this provision only reiterates and recognises the fundamental principle of Jurisprudence and the Rule of Law that no administrative or executive act will be permitted to prevail or represent something which is illegal or that which does not depict the correct position. The civil suit or the suit under the Mamlatdars' Courts Act were then the only competent proceedings possible to be taken which would directly affect the correctness, validity and truthfulness of what mat entry contained. In the instant case the status of the tenant and the nature of his tenancy were concerned. After the amending Act 13 of 1956 came into force, the Civil Court's right to decide the question was barred, and instead the forum of the Court under the Tenancy Act to declare the status and character of the tenant was substituted. The effect and amplitude in law of the decision of this authority under the Tenancy Act is made identical by this very amending Act to the decision of the Civil Court. It is impossible to hold then that despite this legal position, the revenue authority in charge of the public record can under law refuse to delete the entry and make permanent a position which was declared to be illegal, incorrect and untrue. True it is that under Sub-section (4) of Section 135H, by Clause (b)(vi), authority is vested in the State Government by notification to direct that this section shall apply to any application other than those mentioned therein. But that, to our mind, can make no difference. In our view, Section 135H merely recognises the aforesaid fundamental principle of jurisprudence and rule of law that no public record can be allowed to speak differently much less quits contrary to the decision of the competent authority vested with jurisdiction to conclusively decide the civil rights of parties. The learned Acting Advocate General frankly conceded that as a matter of practice and in fact entries are changed in accordance with the decision given under Section 70(b) of the Tenancy Act but he was not able to lay his hand on any notification issued under Section 135H by the State Government in that respect. Be that as it may, we are firmly of the view that the physical entry in the record of rights cannot be allowed to exist, which is contrary to or in conflict with the decision given under Section 70(b) of the Tenancy Act. The said entry cannot obviously exist in the eye of law even physically and if it does, its continued existence is an invalidity and no Court of law or Tribunal having the duty to decide judicially cm treat it to be in existence and put reliance upon it for its decision.

18. Our conclusion, therefore, is that if it can be shown that a proceeding before any competent authority including the proceeding under Section 70(b) of the Tenancy Act was pending on 1-8-1956 and that the final decision therein declared that the tenant was not a permanent tenant, the amended definition cannot be of any use to the tenants and the entry even if were to exist physically in the record of rights it cannot be relied upon to hold that the tenant is a permanent tenant.

19. The next question is whether in the present group of 12 petitions, any such proceeding was pending on the 1st of August 1956 and what was the final decision thereon. As regards the other two groups we shall deal with the matter in the respective separate judgments we are giving today. The petitioners say that their application dated the 30th of July 1954 which was decided by the Aval Karkun in 1958 was such a proceeding. The learned Acting Advocate General and the learned advocates for the tenants urged that it was not so and that it was an application under the Land Revenue Code only for correcting or deleting the entry in the record of rights wherein the names of the tenants were entered as permanent tenants. Now, before we go to actually examine the nature and contents of the application dated the 30th July 1954 and its effect on the parties' rights, as the learned Acting Advocate General and Mr. Shastri had relied upon the scheme of the Code and the Rules having a bearing on the record of rights and its entries in support of their contention and particularly that the said application is at best an application under the Code, and further that the entry under the record of right proceedings does assume finality and as full arguments were heard on this aspect, we would like to deal with these questions at this stage.

20. It was Mr. Shastri's submission that the application dated the 30th of July 1954 was the application meant to be given under Rule 106 or 107 but Rules 106 to 109 do not apply once the record of rights was finally promulgated and it is an admitted fact that the record of rights was not promulgated in the instant village on the 29th of April 1954. Therefore, this application was infructuous. According to him, Rules 106 to 109 apply only to the rough copy prepared under Rule 105 before the final record of rights was prepared. On the other hand, the submission of the learned Acting Advocate General was that Rules 106 to 109 apply both to the preparatory stage as contemplated by Rule 105 and also to the stage after the record of right is promulgated. It may be mentioned here that as indicated hereinbefore, it is the contention of the petitioners that such record of rights were prepared without giving them notice under Section 135D of the Code and, therefore, they are invalid. This is the basis for the second broad submission Mr. Daru had made. This contention need not be examined by us at this stage and we shall refer to it at its proper place.

21. This necessitates, however, the analysis and examination of the scheme and content of the rules that govern the record of rights which are contained in Chapter XV of the Rules and consist of Rules 104 to 113 and also some of the sections of the Code that deal with record of rights under Chapter XA of the Code.

22. Section 135B provides that a record of rights shall be maintained in every village and it lays down what particulars such record of rights shall contain. They are, (a) the names of all persons (other than tenants) who are holders, occupants, owners or mortgagees of the land or assignees of the rent or revenue thereof; (b) the nature and extent of the respective interests of such persons and the conditions or liabilities (if any) attaching thereto; (c) the rent or revenue (if any) payable by or to any of such persons; (d) such other particulars as the State may prescribe by rules made in this behalf. Sub-section (2) lays down that similar particulars shall be entered in the record of rights with respect of perpetual tenancies also. This gives us a fair idea as to what the contents of the record of rights shall be. Section 135C deals with acquisition of rights and the report to be made by the person who acquires such a right. It provides that 'Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land, or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the village accountant within three months from the date of such acquisition, and the said village accountant shall at once give a written acknowledgment of the receipt of such report to the person making it'. The second proviso is of some importance. It states that 'any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the village accountant'. We are not mush concerned with the two explanations added to this section. This section, therefore, in general provides that whenever a person acquires any right in any of the manners particularised, it will be his duty, unless such right is acquired by virtue of a registered document to report the matter either orally or in writing to the village accountant and the duty of the village accountant is to give an acknowledgment in writing of the receipt of such report. This section has some important bearing on the rival contentions raised by the parties and we will have opportunity to refer to it again. The next Section 13SD provides as to what the village accountant has to do on receipt of the report under Section 135C and other consequences thereof. Sub-section (1) provides that on receipt of the report, the village accountant shall enter in a register of mutations every such report made to him under Section 135C and shall also make an entry therein respecting the acquisition of any right of the kind mentioned in the said section which he himself has reason to believe to have taken and of which a report has not been made to him under the said section. So a total obligation is cast on the village accountant firstly to note the report in the register of mutations if he receives such a report or, on his own inquiry if it comes to his knowledge that such a right has been acquired, he shall also note such acquisition of right in the register of mutations. This subsection also indicates that law requires keeping of a separate book to be known as register of mutations. Sub-section (2) provides that whenever such an entry is made in the register of mutations by the village accountant he shall at the same time post up a complete copy of the entry in a conspicuous place in the chavdi. Not only that, but he shall also give written Intimation to all persons appearing from the record of rights or the register of mutations to be interested in the mutation and to any other person whom he has reason to believe to be interested therein. This part of this section has again become a centre of controversy between the parties. It is Mr. Daru's contention that this substation applies to the stage of preparation also and that in entries made for the first time in what Is called the rough copy of the record of rights, the procedure prescribed in this substation has to be followed, viz. written intimation should also be given to all persons, and this having not been given and which is a mandatory provision, according to him, the entries are not valid. We shall examine this position a little later. Sub-section (3) provides that if any objection to any entry made under Sub-section (1) in the register of mutations were made either orally or in writing to the village accountant, it shall be the duty of the village accountant to enter the particulars of the objection in a register of disputed cases. This subsection, therefore, indicates again a dual duty on the village accountant. If any objection is received to any entry made in the register of mutations, he shall have to note it and enter the particulars of the objection in the register of disputed cases. Therefore, this substation refers to another document to be maintained by the village accountant and that is the register of disputed cases. Sub-section (4) provides that orders disposing of objections entered in the register of disputed cases shall be recorded in the register of mutations by such officers and in such manner as may be prescribed by the rules. When we go to the rules, we will find Rule 108 makes a provision as to how the disputed cases entered in the register of the disputed cases should be disposed of. Sub-section (5) provides as to when and how the entries from the register of mutations shall be taken to the record of rights. The manner, in which it is to be done once again, is to be provided by the Government by framing rules, but the subsection lays a restriction and that is that such an entry shall not be transferred to the record of rights until such entry has been duly certified. Then Sub-section (6) provides as to how the entries in the register of mutations shall be tested and when found correct it shall be certified by the revenue officer of the rank not lower than that of a Mamlatdar's first karkun. Sub-section (7) lays down that the provisions of this section shall also apply in respect of perpetual tenancies and other tenancies which may be notified. The overall effect of this section is, therefore, that mutations which take place under Section 135C of which a report is made or which the village accountant comes to know about, shall be entered in the register of mutations and before doing so, the village accountant shall follow the procedure of giving intimation to individuals interested and if any objection is raised by any interested party, then how to deal with it and ultimately how these objected entries shall be taken to the record of rights. Section 135B casts certain obligation on persons whose rights, interests or liabilities are required to be or have been entered in the record of rights or the register of mutations. It lays down that they shall be bound, on the requisition of any revenue officer or village accountant engaged in compiling or revising the record or register, to furnish or produce for his inspection, within one month from the date of such requisition, all such information or documents needed for the correct compilation or revision thereof as may be within his knowledge or in his possession or power. Sub-section (2) provides for giving acknowledgment, if any such document is produced, to the party producing such document or even information. Section 135C is not of importance to us. We have already dealt with the effect of Section 135H so also of Sections 135J and 135L. These are almost all the sections which have relevance to the questions before us.

23. Then we turn to the rules. Rule 104 firstly provides that the record of rights and mutations, the index of lands and the register of disputed cases will be kept in forms O, P and Q respectively prescribed with one exception, but we are not concerned with the exception. Secondly, it defines the term mutations in the following language:

After the original preparation of the Record all later entries altering or transferring those rights are termed 'mutations'.

Now, dealing with the first part, it need only be noted that it refers to mutations and not register or diary of mutations. As regards the contents of the second part there is sharp controversy between the parties. Mr. Shastri urged that the words 'the original preparation of the Record' only covered within its ambit the rough copy of the record of rights to be prepared before the final or fair copy is prepared and, therefore, as a consequence thereof Rules 106 to 109 can only be interpreted to apply to the entries in the rough copy. Secondly he urged that mutation means any subsequent entry that is made in the rough copy only and not those, in the record of rights after it is finally prepared. We see no substance, however, in this submission of Mr. Shastri. The rule making authority wherever it intended to refer to rough copy it has referred to it in contradiction to the expression fair copy to which we shall refer when we go to Rule 105. The learned Acting Advocate General at first seemed to agree with Mr. Shastri on this submission, but then he fairly conceded that that did not seem to be the correct interpretation and it must mean the first original final record of right that is prepared on the introduction of the record of rights, after going through all the steps of the preparatory stage. This is to our mind the correct connotation of these words. The whole submission of Mr. Shastri based on this construction, therefore, falls to the ground. We then proceed to examine the full effect of the second part of Rule 104. Mr. Dam's submission was that this word 'mutation' has the same ambit and connotation as the one in Section 135D and it cannot have a wider connotation. He submitted that when Rule 104 speaks of mutation, it only means the one relatable to Section 135D. We are unable to accept this submission. We are of the view that the construction put by the learned Acting Advocate General is correct and it is this that any subsequent entries that are sought to be made and are actually entered in the Diary or Register of mutation and thereafter entered in the record of rights, which have the effect of altering or transferring the rights entered in the final original record of rights, are mutations. What Section 13SC contemplates is only one kind of mutation, that is to say by virtue of acquisition of rights. They may correctly fall within the category of transferring the rights. But Rule 104 also contemplates any alteration in the original entries. Say, if the landlord wanted to object to the entry whereby the name of the tenant was entered as permanent tenant in the record of rights and he wants it to be altered to 'protected tenant, ' then it would be a mutation sought which would be first entered in the diary or register of mutations. What is to be done with it will be shown by the subsequent rules. The words used in Rule 104, to our mind, do not Import any limitation that alteration will only mean those which are necessitated by acquisition of rights and not otherwise. Rules are not made under Sections 135C or 135D but under the wider powers given under Section 214 of the Code these rules are framed. This construction which we are placing does not, in any wav, conflict with the provisions of Section 135C or 135D because they too are taken within its ambit. So, in our view, the word 'altering' in Rule 104 would include any subsequent entry denoting alteration of any kind or change in the character of the right originally noted in the record of rights in a particular entry.

24. We then go to Rule 104. Sub-rule (1) lays down that when the record of rights is first introduced in any village as soon as the preparation had begun, the village accountant shall have to cause notice thereof to be given by beat of drum and also post up a written notice of it in the chavdi. The notice mentioned here is of the fact that he will now proceed to prepare the record of rights and that the preparation for introducing the record of rights are afoot. Sub-rule (2) is a very important provision. It says that prior to the preparation of the 'fair copy' of the record of rights the village accountant shall prepare a 'rough copy' of the record in the form of index of lands with all rights noted against each parcel. Until the fair copy is prepared, such rough copy shall be used as and be deemed to be the register of mutations and the provisions of the Code and of these rules which apply to the said register shall apply so far as may be to such rough copy. It also provides that the provisions of Rule 111 respecting the introduction of the rewritten copy of the index shall apply so far as may be to the introduction of this first fair copy of the record. Therefore, this sub-rule deals with the actual preparation of the record of rights and how it will be done and which officer shall do it. This Sub-rule (2) lays down the whole procedure to be followed. It contemplates in the first instance, the preparation of the rough copy of the record of rights by the village accountant. We have already referred to form 'P' to show what the record of rights should contain. One thing to be noted is that the entries have to be made survey-number wise of each parcel of land and mention all kinds of rights against that entry. Then it lays down that so long as the fair copy of the record of rights is not prepared, the rough copy will not only be the rough copy of the record of rights but it shall also be used and be deemed to be the register of mutations. So in the interim period between the preparation of the rough copy and the fair copy, it will have the dual role to perform; (1) that of record of rights and (2) register of mutations. Then it further provides that as this document will also be used as and be deemed to be the register of mutations, all the provisions of the Code and the Rules that apply to the register of mutations after the record of rights are finally prepared, so far as may be, shall apply to this rough copy of the record of rights. It is to be noted that once the record of rights is fully and finally originally prepared, the provisions of the Code and the Rules indicate, as we have already pointed out, the keeping of the separate register of mutations. Sub-rule (2) as we have noted also deals with one more contingency when the record of rights are prepared for the first time and that is as regards the procedure known as rewriting copy of the index of lands. To understand this we may as well refer to the relevant rules at this stage. Rule 110 provides that the index of lands shall be rewritten incorporating all mutations recorded upto the date prescribed by the sub-divisional officer whenever that officer, in view of the number of entries in the Diary of mutations, shall so direct Then Rule 111 provides that when the rewriting Index of land is reported to be complete, the Collector or sub-divisional officer shall fix a date for its inspection and shall cause notice thereof to be given calling upon all persons interested to appear on such date at a specified place in or in the immediate vicinity of the village concerned and notifying that any such person may before such date inspect the Index on application. Sub-rule (2) then provides for what is to happen on that day and it lay down that on the date and at the place appointed the Collector or sub-divisional officer shall compare the new copy with the old Index and the Diary of mutations, cause such portion thereof to be read out as any of the persons present may desire to hear, read and make any correction that may be necessary. Such officer then shall sign the new Index and subscribe below it a certificate that the entries therein have been duly tested and found correct. In short, these two rules provide for rewriting the Index of records to bring it upto date. This rewritten is necessitated every 10 or 15 years depending upon the number of mutations done and the necessity to freshly prepare these index of lands. As we have seen, it clearly lays down that what is to be done at this stage is to compare the old index and the register of mutations with the new index prepared and to certify the new index to be correctly recorded. It does not speak about any objections to be raised at this stage by anybody interested in any of the lands, and his right only is to check the fact as to whether the comparison has been done correctly and that the entries in the rewritten index are in accordance with the correct situation taking into account the old index and the register of mutations. At one stage, the learned Advocate General submitted that under Rule 111 also a party gets the opportunity to object but then on a further scrutiny agreed that no such right to object is given at this stage with which Rule 111 deals. The overall intention of Rule 105(2) is to provide a complete procedure or code by itself by incorporating several provisions of the Code and the rules. Analysing the rule, it appears clear to us that first the rough copy will be prepared, that first copy as it is to be used and also to be deemed to be the register of mutations and as it is the very first attempt to create a record of rights, there may be correct as well as incorrect entries, so an opportunity has to be given to persons interested to have them corrected. As already discussed, even after the record of rights are finally prepared, persons interested have the right to have, 'alteration' or 'transfer' made in the entry originally made in the Record of Rights not only when rights are acquired under Section 135C but even apart from Section 135C.

25. As indicated, a controversy is raised by Mr. Daru that as the rough copy of the record of rights becomes a register of mutations by the fiction, by the same fiction all the procedure including that of Section 135D i.e. to say giving of personal notice must also apply when all the entries are first posted in the rough copy because it becomes, under the fiction, the register of mutations also. Though at one stage this submission appeared to have great force, a scrutiny of the scheme and the relevant provisions make us reject it. Rule 105(2) shows that the fiction starts or comes into effect after the rough copy is prepared containing the entries regarding the record of rights and thereafter only it becomes a register of mutations. Therefore, the fiction would not touch the original preparation of the rough copy which to begin with is the record of rights. Now, as during the interim period alterations and transfers in the rights may take place, law provides that instead of having a separate register of mutations, the same rough copy will be used and be deemed to be a register of mutations, so that when any alteration or transfer of right is sought in the original entry shown in the rough copy, then they shall be made In the rough copy itself and not in a separate register and the procedure for verifying and certifying and also to decide the dispute in the manner, that apply to such mutation after the record of rights is finally prepared, is also made applicable to the stage of preparation of the record of rights. But this comes into effect only and apply to only the subsequent entries sought by way of mutations of the original entries and not to the original entries themselves, made either in the rough copy or the final copy when the record of rights finally comes into existence. In our view, therefore, the contention that personal notices should be issued to the whole body of land holders in a village, right at the beginning when the entries are entered in the rough copy of the record of rights is not tenable. Only if subsequent entries of the nature contem plated by Sections 135C and 135D are to be made then it will attract the application of Section 135D also at the preparatory stage. As we have already pointed out, this has an effect on the broad submission No. 2 made by Mr. Daru. Suffice it to say at this stage that as Rule 105(2) stands, a personal notice is not necessary at the first stage when the rough copy is prepared. This conclusion of ours stands to reason and there is no likelihood of its causing injustice or hardship and that becomes apparent when we go to subsequent Rules 106 to 109 as they are also made applicable under the fiction to the preparatory stage. All the opportunities that the objecting party gets to object to the entries made, after the record is prepared finally, he also gets at the stage while the record is being prepared. If any party wanted to seek an alteration in the right shown in the rough copy, it will be first entered in the rough copy being the register of mutations and then the party interested will get the advantage of Rules 105 to 109. What these rules are, we may now see.

26. Rule 106 firstly lays down that every mutation shall be posted in the Diary by the village accountant and examined by the Circle Inspector and shall be read out and explained by the latter to all persons present. So this is the first chance which persons interested in the entry which is a mutated entry or which is a mutation within the meaning of Rule 104 get. In the case of the preparatory stage, this entry will be made in the rough copy and the same opportunity will be available to the aggrieved or interested party. After this checking is made by Circle Inspector, he has to initial all the entries so examined. The subsequent part of this rule provides that if the mutation as noted in the Diary of mutations is not objected to or is admitted, the Circle Inspector has to note the admission. If, however, any person interested disputes the correctness of the entry, the Circle Inspector has not to erase the entry but shall correct any error admitted by all the parties. Bat if the error is not admitted, he has to enter the dispute in the register of disputed cases and it shall be disposed of as provided in Rule 108. This is the first stage where parties interested get their opportunity. The second stage is provided by Rule 107 which lays down that the entries in the Diary of mutations shall be further tested and revised by a revenue officer not lower in rank than a Mamlatdar's First Karkun. If he finds that the entry is correct, then he shall certify it to be correct. If hi finds that the entry is not correct and even if no dispute is brought to his notice, the entry shall be corrected as provided in Sub-rule (4) of Rule 107 and then it shall be certified by him If he does so on his own, such correction, law lays down, shall be a new mutation for the purpose of Section 135D. The rule making authority there-fore has been careful enough to see that when there is nobody even to object to an entry and if the officer under Rule 107 comes to know that it is incorrect and if he makes the change, then the personal notice thereof shall be given under Section 135D(2). If the officer, however, finds that a dispute exists as regards any particular entry examined by him, he has also to enter such an entry in the register of disputed cases and the dispute then shall have to be disposed of again as provided in Rule 108. Power is given to such officer to dispose of the dispate himself if he so chose Sub-rule (5) then speaks of appeal and it lays down that only one appeal shall be available, but if the Collector were to test and revise the entries in the Diary of mutations, then there shall be no appeal, the Collector being me highest authority so far as the District is concerned. Next comes the important rule as to what is to happen to disputed entries. Sub-rule (1) of Rule 108 provides that the disputed entry in the register of disputed cases shall be ordinarily disposed of by the Mamlatdar's First Karkun or by the Mamlatdar, but also authorises other officers to do so. Sub-rule (2) provides that the inquiry shall ordinarily be made in the village in which the land is situate or in which the interested party reside. Sub-rule (3) lays down that the order that is passed after the inquiry shall be noted in the register and shall, according to the decision, be entered in the diary of mutations if necessary and then the officer shall certify the entry in the dairy of mutations to be correct. Sub-rule (5) provides for appeals against the orders passed under the rule. We need not enter into the details thereof as to to which officer appeal should lie. But one thing requires to be noted and that is that subject to the provisions Sub-rule (6), the decisions of the appellate authority are made final and it further provides decisions of the appellate authority are made final and it further provides that there shall be no second appeal shall lie in any case. There is no doubt therefore that under the code at this stage the entries made in the record of rights are intended to be final so far as the Code is concerned. Sub-rule (6) provides for the Commissioner's powers to revise the orders passed by any subordinate revenue officers under Rules 106, 107 and Sub-rules (1) to (5) of Rule 108 and to has the authority to modify, annul or reverse such orders and make such orders as he deems fit. Sub-rule (7) provides that if the appellate order or the orders passed in revision by the Commissioner confirms the previous decision, it shall be noted in the remarks column against the entry which is confirmed and if he alters it, the change shall against the entry which disputable mutations this also does show be entered as a free The finality is intended to the entries made in the record of rights so far as the Code is concerned at a particular stage. Rule 109 then lays down that the entries in the Diary of mutations shall ordinarily be trans to the Index of lands as soon as they are certified. We have already seen the ambit of Rules 110 and 111. We need not refer to Rule 113 which only provides for tenancies with which we are not concerned.

27. Perusing all these rules and the relevant provisions of the sections, it has to be accepted that the Code does provide a complete machinery at the preparatory stage and also after the record of rights are prepared to seek mutations or to object to mutations and have the entry altered or transferred, and also that rule making authorities intend that the entries made in the record of rights for the purposes of the Code shall have finality at the particular stage. But then the question is, whether if such an entry is not objected to or remains on the record of rights, what is the effect thereof. The only effect is, as we have already indicated, under Section 13SJ it will create a presumption that unless the contrary is proved, the respective rights are duly noted. The remedy of the aggrieved party in no way is taken away, to have the right or status or character of the right as entered in the entry decided by a competent Court.

28. This takes us back to the vital question of the nature and con tents of the application dated the 30th of July 1954 made by the petitioners. Was it an application under Section 70(b) of the Tenancy Act or was it an application under the Code for the purposes of changing or altering the entries, and the next question is, in case of either what is the effect thereof on the present matters on hand. We may, therefore, have a look into this application ourselves. The application is addressed to the Mamlatdar of Kalol. It shows that it has been filed on behalf of the Inamdars of village Khandoli. Then it sets out the facts that recently record of rights have been introduced in the Inam village of Khandoli and at that time many of the tenants' names have been entered as permanent tenants though, as a matter of fact, these tenants are not permanent tenants and have been merely annual tenants and after the Tenancy Act came into force, they have been protected tenants or ordinary tenants. Therefore, they should be only entered in the records as such tenants and not as permanent tenants and they object to their names being so entered as permanent tenants. When the Tenancy Act came into force, these tenants have been entered into the Tenancy Registers as protected tenants and unless change is made in these entries in the record of rights also they could only be registered as protected tenants. Then it is set out as to when tenants could be considered to be permanent tenants and mentioned that tenants could be said to be permanent tenants only if they could satisfy the requirement as laid down in Section 83 of the Land Revenue Code and also states the content and effect of Section 83. They further contend that it is for the tenant who claims to be a permanent tenant to prove the requirement as laid down in Section 83 of the Code and till they do so by going to the Civil Court they have no right to be entered as permanent tenants in the record of rights and they can only be noted as protected tenants. They also bring to the notice of the authority that Section 83 of the Land Revenue Code was not till then repealed and it could not be disregarded. In the next para they make important statement that these tenants are not the permanent tenants and complain that the Circular which the Government has issued was against the law and that their right should be decided under the provisions of Section 83 of the Land Revenue Code. They also attached the names of all the tenants whose names had been entered, together with other particulars, in the record of rights as permanent tenants. It is also mentioned that they have got documentary evidence to show, by way of their own records, that these persons are not permanent tenants.

29. The learned Advocate General contended that this application could not be said to be an application which falls within the requirements of the provisions of the Tenancy Act for negative declaration to be obtained under Section 70(b). He complained that no parties are mentioned in the application as the opponents. We have pointed out that they have given the names of the tenants who were intended to be affected by this application. It was then submitted that by this application the complaint made was as regards the entry having been wrongly made. Therefore, that would clearly fall within the purview of an application for correcting a wrong entry in the record of rights. We do not find any substance in this submission also because, regarding the application as a whole and particularly the paragraph to which we have already referred to, it definitely contains a plea that their right should be decided according to the provisions of law and particularly Section 83 of the Land Revenue Code. They merely referred to the entry in the record of rights, as a matter of history, and as the basis of their complaint that the tenants have been wrongly shown as permanent tenants and thus their right had been affected. Such an averment had to be made in order to show as to what the cause of action was. Then it was tried to be made out that it bears no verification. The procedure under the Mamlatdars' Courts Act has been made applicable and, therefore, it must be verified. In this also we find no merit. If we turn to the procedure of the Mamlatdars' Courts Act, particularly Sections 8, 9 and 10 and the others, clearly show that an obligation actually is cast under those provisions on the Mamlatdar not to throw away even a plaint meant to be under the Mamlatdars' Courts Act, if it does not comply with all the formalities of the plaint as required under that Act, but to himself look into it and give an opportunity to the party coming for relief to put it in order and this is so even as regards the want of verification or incorrect verification. Now, it is true that the provisions of the Mamlatdars' Courts Act as regards the plaint or contents of the plaint would not directly apply because the Tenancy Act itself provides for an application to be filed and what that application shall contain But, at the same time, the rest of the provisions which constitute the procedure for the Mamlatdars' Courts definitely apply and, therefore, even if this application is found to be wanting in some of the formalities or its contents as required by even the Tenancy Act, it would be the duty of the officer concerned to discharge his obligation as required by law under the provisions of the Mamlatdars' Courts Act. We, therefore, find no merit in either of the contentions raised by the learned Advocate General against this application to make an effort to persuade us to hold that this application cannot be an application under the Tenancy Act but can only be treated as an application under the Code for altering a mutation entry or an entry In the record of rights. We are convinced, having ourselves looked into the contents of this application, that it was an application which was maintainable under Section 70(b) of the Tenancy Act.

30. Then it was argued that uptil the stage of filing of the present petitions, the petitioners believed and treated this application as if it was an application under the Land Revenue Code and not as one under the Tenancy Act. But this to our mind cannot affect the position any the least, if as a matter of fact this application contained averments and contentions which could be decided by the Aval Karkun or the Mamlatdar under the Tenancy Act and was decided as such. Again, we are not left to imagine things as to whether this application was treated as an application under the Tenancy Act or not, or under the provisions of which Act it was disposed of. We find on the record the positive evidence that the application was treated, entertained and disposed of, as a matter of fact, by the Aval Karkun as an application under the Tenancy Act. Only one look at the judgment of this officer is sufficient to carry conviction to any one having such a look. In the very opening paragraph of his order he has said that 'Inamdar of Khandoli village Shri Navinkant Kesharlal has applied for deciding that the tenants of the Inami land described in this register of Khandoli village are not parmanent tenants but they are ordinary or protected tenants.' This clearly shows what the dispute was and what dispute was decided. The next sentence is almost conclusive on this question wherein he has stated 'Following issues are to be considered for deciding permanent tenants under the 1948 Tenancy Act. Then the officer had proceeded to raise issues, considered the evidence produced by both the sides and on merits came to the conclusion that no one of the 167 tenants stated in the register was a permanent tenant and, therefore, they should be entered In the record according to the rights accrued to them earlier or may accrue in other categories of tenants excepting that of permanent tenants. Therefore there is not a shadow of doubt that this application contained all the material requirements of an application under the Tenancy Act. It raised a dispute which the officers under the Tenancy Act could decide, the dispute was decided on merits after hearing all the sides concerned and be came to the conclusion that the tenants were not permanent tenants. It is an admitted fact that the present tenants were included in that lot of 167 tenants whose names were ordered to be removed from the record of rights as permanent tenants. Once this application was entertained and disposed of by the competent authority having jurisdiction to decide under the Tenancy Act, it cannot lie in the mouth of any party or anyone concerned to say that the parties still treated the application not under the Tenancy Act. Supposing the decision had gone against the petitioners, could their saying at any subsequent stage that they had intended this application to be an application under the Land Revenue Code only and not under the Tenancy Act, be of any use to them certainly not. Parties had not even raised any such objection before the Tenancy Aval Karkun who-actually decided this matter under the Tenancy Act. Now that it was legally entertained and decided by the Aval Karkun who had the jurisdiction to entertain it, neither the Collector nor the Tribunal nor the parties can say that It was not meant to be an application under the Tenancy Act or that it was not in the form as was required under the Tenancy Act and, therefore, It cannot be treated by this Court as an application under the Tenancy Act. We may only add that as regards the form. Courts have so often held that it is not the form but substance that matters. We may rest satisfied by referring to two judgments of the Bombay High Court on the subject. One is Special Civil Application No. 370 of 1956 decided on 9th April 1956 by Gajendragadkar J. (as he then was) and Gokhale J. They clearly laid down that the Courts have not to lay emphasis on the form of an application but 'it is essentially necessary to consider the substance of the matter'. To the same effect is the decision in Special Civil Application No. 3236 of 1958 decided by Mudholkar and Patel JJ. on 25th February 1959. To our mind, the point hardly requires a further stressing. A faint effort was made by the learned Advocate General on behalf of the Commissioner to urge that this application was not decided by the Mamlatdar as required under Section 70(b) but it was decided by the Aval Karkun and, therefore, was not decided by on officer having jurisdiction and, therefore, this decision is not binding. As regards this also we find no substance. It is a fact known to all concerned with the tenancy matters that the Aval Karkuns in all the Talukas of Gujarat are appointed to perform the duties of the Mamlatdar under the Tenancy Act, 1948. In the book by K.S. Gupte on the Bombay Tenancy and Agricultural Lands Act, 1966 Edition, the learned author at page 34 has quoted even the resolutions and the notifications whereby such orders were passed. We are not shown anything to the contrary by anybody at the bar. Under the circumstances, we have no hesitation In rejecting this submission also.

31. Our conclusion, therefore, is that much prior to the 1st of August 1956, when the amending Act came into force, the petitioners had challenged the correctness of the entry inasmuch as they contended that the tenants were not permanent tenants and this application was pending on that day and ultimately came to be decided on the 28th of December 1958 that the tenants were not permanent tenants. This decision naturally was relatable to the date when the dispute was raised, i.e. on the 30th of July 1954. During this period there was no finality attached indeed to the status of the tenants as permanent tenants and was legally liable to be decided one way or the other. When the decision was given, it was in the eye of law effective from the 30th of July 1954, i.e. the date much prior to the date when the amendment came into effect and it rendered the entry entirely ineffective and was devoid of any legal force. Proprio vigore it had no effect in the eye of law and the entry for all practical purposes was non-existant. As a matter of fact also the original entry showing the tenants to be permanent tenants was deleted and they were shown by another entry to be protected tenants only. The name of the tenant as permanent tenant, therefore, cannot be said to exist in the record of rights validly or correctly from 31-7-54 and onwards and consequently the impugned entry cannot be used as a basis to hold the said tenants to be permanent tenants under the definition in Sub-section (10A) of Section 2 of the Tenancy Act. It is true that the said decision of the 28th December 1958 could have been disturbed by further steps like an appeal to the Collector or even a revision application to the Tribunal under the Tenancy Act. But admittedly no steps were taken. Instead some miscellaneous applications were made and the Mamlatdar moved the Collector and the Collector in his turn moved the Commissioner and then the Commissioner passed the aforesaid two orders. As we have held that the application that was made by the petitioners on 30th July 1954 was an application under Section 70(b) of the Tenancy Act, and was treated and decided as such, the Commissioner had no jurisdiction under Rule 108(6) to revise that order and the Commissioner's order was, therefore, without jurisdiction. It is further obvious that the said order was not made on merits at all. The said order can have no valid effect to nullify the order of the Aval Karkun passed in 1958 or to restore the original entry made by the Revenue Authorities while the record of rights was first promulgated. The result is that the Tribunal's order passed, by relying on the said entry is also patently erroneous. The Tribunal took the view that the Commissioner had, by a valid order, set aside the Aval Karkun's order dated the 28th December 1958 and, therefore, the original entry whereby the name of the tenant was entered as permanent tenant had been received and was in force. This is an error on the face of the record. We have also shown that the obstruction placed by the Tribunal that mere physical existence of the entry has to be seen on the date when the amending Act 13 of 1956 came into effect, i.e. on the 1st of August 1956, is also patently erroneous.

32. The history of this matter with which the Tribunal was concerned was peculiar and the stand taken by the Commissioner as a Tribunal is also rather unusual as we find that unlike the stand usually taken, of letting the Court decide the dispute between the parties, he has taken a positive stand of supporting the tenant's claim. As we have seen, the petitioners were Jagirdars. The Jagir was abolished but before that the record of rights was introduced in 1954 and as the names of the tenants were entered as permanent tenants, application dated 30th July was made. Nothing was done for years but then after a thorough inquiry on merits under the Tenancy Act, the Aval Karkun came to the conclusion that the tenants were not permanent tenants. No appeals were sled, no revision application was made to the Tribunal under the Bombay Tenancy Act. Then more than three years thereafter, the Commissioner without entering into merits, set aside the orders. At this stage, however, it is apparent from his own order that he did not intend his order to finally smother the rights of the petitioners to have the dispute decided according to law and first directed that the inquiry be again made under Section 6 of the Bombay Land Tenures Abolition Laws Amendment Act of 1958. It appears that the said section and the other sections of that Act were struck down by the Supreme Court as unconstitutional. So he substituted the order by his second order whereby he directed the petitioners to approach a Court i.e. by a suit, or to take recourse to other available remedy. The intention at this stage was not to deprive the petitioners of their remedy for all times. The notification of Government dated the 9th of September 1957 which is Annexure D to this petition also indicates the same thing. We might just refer to its contents to see what the State intended to do in respect of the rights of the petitioners at this stage. It is directed that the revenue officers, when entries in respect of tenancy rights are challenged, shall follow the procedure laid down in Government Circular dated the 30th of September 1954. According to these instructions the challenging party should be directed to apply to the Mamlatdar under Section 71 read with Section 70(b) of the Tenancy Act for determining the tenancy rights. It proceeds to say that under Section 70 of the Tenancy Act, it is the Mamlatdar who is competent to entertain the applications for determining the question whether a particular person is a tenant or a permanent tenant or not even though the question may not have arisen in any other proceedings under the Act. Hence, if any person wanted such a decision, it is the Mamlatdar who is empowered to decide under Section 70(b) and it would be open to the person aggrieved to file an application under Section 71 of the Act, and on receiving such application, it would be obligatory on the Mamlatdar to decide that issue. It also points out that the civil Court had no jurisdiction to decide the point and the civil Court would have to refer the matter to the Mamlatdar under Section 85 A of the Bombay Tenancy Act. It further refers to the fact that the permanent tenants enjoy special privileges in regard to purchase price and hence their status may be frequently challenged by the landlords. Then we find the following pertinent observations, that it was true that according to the definition of permanent tenant given in Sub-section (10A) of Section 2 of the Tenancy Act, a tenant whose name has been entered as a permanent tenant in the record of rights immediately before the commencement of the amending Act of 1955 is a permanent tenant for the purposes of the Act. But the expression 'has been entered in the Record of Rights' must be taken to mean 'has been validly entered in the record of rights'. There is, therefore, nothing in the said definition to suggest that it is not open to the landlord to challenge the correctness of the entry by taking such proceedings as may be available to him and disputing the status of the tenant. Therefore, if in any such proceeding the landlord succeeds in establishing his claim that the entry is incorrect, the entry will have to be corrected accordingly and the correction will have a retrospective effect from the date the incorrect entry was made and on such correction, a tenant whose name had come to be entered in the record by reason of an incorrect entry, will not be able to claim the rights of a permanent tenant.

33. Having regard to the conclusions that we have reached, the order of the Commissioner as well as the Tribunal's finding confirming that order of the Commissioner will have to be quashed. We shall order accordingly.

34. It may be mentioned that it is the allegation of the petitioners that when the record of rights was first promulgated, the names of the tenants, were en-block entered arbitrarily as permanent tenants in the record of rights in pursuance to some Circular issued by the State. We have no such circular before us. The said fact is also denied in the affidavit filed on behalf of the Commissioner. In the light of the view we have taken, it is not even necessary for us to embark on an inquiry as regards the truth thereof. We therefore should not be taken to have decided that point though we may say we would not have hesitated to do so if it was a necessity and if sufficient materials were shown to be before us.

35. That takes us to the second main contention raised before us. In support of that contention, Mr. C.T. Dam for the petitioners has submitted that when the record of rights was first promulgated in the inam village and even before the inam was abolished, the record of rights was prepared without holding any inquiry and without hearing the petitioners though in law it was necessary to give written notice to the petitioners before the entries were made in the record of rights. The entries, therefore, are not valid ab initio. The effect, if this contention were to be upheld would be that the alleged entries in the record of rights that the opponents are permanent tenants would not exist for any purpose for our reliance and, therefore, the inclusive definition of permanent tenant cannot be of any help to the opponent tenants. It was further urged that the petitioners had tried to raise a contention of the entries being not valid, before the Tribunal but the Tribunal had wrongly held that it was not open to the petitioners to say that the entries were invalid and did not consider all the aspects of the question and, therefore, it was an error of law manifest on the record. During the course of the judgment hereinbefore, we have mentioned that the learned acting Advocate General appearing for the Commissioner did concede that the entry to be effective for the purpose of the definition, it must be a valid entry and if it is invalid, it could not be relied upon, But he strongly contended, that there was no invalidity to be attached to these entries on the ground alleged by the petitioners that a personal notice was necessary to be issued before the preparation of the record of rights and he further contended that it was not true that the petitioner had tried to canvass this proposition before the Revenues Tribunal and the decision of the Collector was never Challenged on that ground. We have already pointed out while discussing the effect of the various provisions of the Code and particularly the rules that law did not require in all cases the personal notice to be given to the parties when the record of rights were being prepared and the rough copy is prepared. Under the circumstances, this submission of Mr. Dam cannot be sustained. On the other ground also, even if we had come to a different conclusion, the petitioners could not have taken advantage of it because the perusal of the judgment of the Revenue Tribunal makes it very clear that this ground was never raised before the Tribunal and the Tribunal had no occasion to decide it in this group of petitions. This contention, therefore, is rejected. As regards the third broad contention, we hold that it is not necessary to decide the constitutional validity of the impugned provision of law as we have been able to decide the matter fully and finally on the construction of the said provision.

35.1 We may observe that after the arguments were heard, Mr. Shastri submitted that if we were inclined to set aside the finding of the Tribunal and hold that the tenants were not permanent tenants falling under the inclusive part of the definition of Section 2(10A) of the Tenancy Act, then the tenants may be given an opportunity to establish that they are permanent tenants at least by virtue of Clause (a) or the first part of Clause (b) of Sub-section (10A) of Section 2. We do not find any justification for doing so as the tenants did have an opportunity not only when the application dated the 30th of July 1954 was heard by the Aval Karkun but also when the subsequent application under Section 70(b) of the Tenancy Act was filed after the orders were passed by the Commissioner. Even thereafter they had the further opportunity before the Revenue Tribunal to challenge the adverse finding of the Extra Aval Karkun. At all these stages the authority on examining the evidence and on merits came to the conclusion that the tenants had failed to establish that they were permanent tenants by virtue of Clause (a) or the first part of Clause (b). We, therefore, cannot accept the suggestion made by Mr. Shastri.

36. The result is that we find that the tenants in this group of petitions cannot be held to be permanent tenants under any part of the definition given by Section 2(10A) of the Tenancy Act. All the petitions are, therefore, allowed. The order dated the 8th of September 1961 and the order dated the 17th of February 1962 of the Commissioner, Baroda Division, setting aside the order of the Aval Karkun dated the 28th of December 1958 are quashed. The finding of the Revenue Tribunal by its judgment dated the 2nd of August 1963 that the tenants are permanent tenants by virtue of the inclusive part of the definition in Sub-section (10A) of Section 2 of the Tenancy Act whereby the appellate order of the Assistant Collector dated the 31st December 1962 was confirmed is also set aside with the result that the order of the Aval Karkun dated the 28th of December 1958 stands effective and binding on all concerned. In the light of the observations made in our judgment, we further order that the respondents Nos. 1 and 5 in the respective petitions shall pay the costs of the petitioners. Rule made absolute.


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