Sandu Alias Jamaluddin Madarbhai ... vs Maruti S/O Trimbak And Anr.
2004 Latest Caselaw 423 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard Shri Patni, Advocate for petitioners and Shri A. A. Joshi, Advocate for respondent No. 1.

2. This petition takes an exception to the judgment and order passed by the learned Member, Maharashtra Revenue Tribunal in appeal No. 89/A/86/A dated 27th February, 1989, confirming the judgment and order passed by the learned Deputy Collector, Land Reforms, in file No. 81/LR/TNC/A/62 dated 10th May, 1985.

3. Few facts necessary to understand the controversy between the parties, may be summarised as below :-

The agricultural landed property having survey No. 21/2, converted to Gat No. 8 admeasuring 25 acres 17 gunthas is situated at village Khardi, Tq. Khultabad, District Aurangabad. After declaration as an 'occupant' regarding the said land under Section 6 of the Hydrabad Abolition of Inam and Cash Grants Act, 1954, the said land came to be granted in favour of Respondent No. 1 on 1- 7-1960. The respondent No. 1 claimed to be a tenant and, therefore, the Occupancy Certificate under the provisions of the Hyderabad Abolition of Inam and Cash Grants Act, 1954 (hereinafter referred to as 'the said Act of 1954', for short) came to be granted in favour of respondent No. 1. It is alleged by the respondent No. 1, who was applicant before the learned Deputy Collector, that he has been forcibly dispossessed by the present petitioner and Respondent No. 2 somewhere in the year 1980-81. The Respondent No. 1, i.e. Maroti s/o Trimbak Gayke, filed an application under Section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereafter referred to as 'the said Act of 1950, for short), before the Deputy Collector, Land Reforms, Aurangabad. In the said application, it is contended by the Respondent No. 1 - Maroti that he has deposited the occupancy price of the land in question to the tune of Rs. 462.48 ps. on 15th September, 1965. According to his contention, a Certificate has been issued by the Nayab Tahsildar, Land Reforms, accordingly. The respondent No. 1 has also contented in the application that the name of the father was wrongly written first and then, the name of the respondent No. 1 was written. The correction has been carried out, as per the orders passed by the Tahsildar. Ultimately, it is alleged in the application that the original petitioner i.e. the Original Applicant Maroti s/o Trimbak Gayke, is dispossessed illegally somewhere in the year 1980, by the present petitioners and respondent No. 2. He, therefore, claimed eviction of the petitioners under Section 98 of the Hyderabad Tenancy and Agricultural Lands Act. The learned Deputy Collector, Land Reforms, after hearing the parties, passed an order on 10th May, 1985, in file No. 8 l/LR/TNC/A/62 No. 153/85 and allowed the said application filed by the respondent No. 1 Maroti. The possession of the land in dispute Gat No. 21/2 of village Khirdi, Tal Khultabad, to the extent of 25 Acres and 17 Gunthas were directed to be handed over to the respondent No. 1, by dispossessing the petitioners and the respondent No. 2 in this petition.

4. The order passed by the Deputy Collector, Land Reforms, Aurangabad dated 10th May, 1985 has been challenged by the present petitioners by filing an Appeal before the Maharashtra Revenue Tribunal ('MRT' for short). The MRT, as stated above, dismissed the said appeal No. 89/A/86/A by the judgment and order dated 27th February, 1989.

5. The learned Deputy Collector, Land Reforms, Aurangabad as well as the MRT, Aurangabad, referred to the judgment of the Division Bench of this Court under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 and more specifically under Section 84(c) of the said Act. The learned counsel Mr. Patni, has placed on record a copy of the said judgment, which is reported in 1969 Mh.LJ. 753 = 1969 T.LR. Page 252.

To appreciate the contentions and submissions raised by both the learned counsel regarding this judgment of the Division Bench, the provision laid down under Section 84 needs to be considered. Section 84 reads thus :

"Any person unauthorisedly occupying or wrongfully in possession of any land :

(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act.

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons."

The Division Bench, referring to Section 84(c) and more specifically words "said provisions", held thus :

"It is argued that words "to the occupation and use of which he is not entitled under the said provisions" contained in Clause (c) of Section 84 of the Act must mean that because of the provisions of the Act he is not entitled to use or occupy the land in dispute i.e. whose possession of the land is rendered unlawful by virtue of some provisions of the Act. It seems, with all respect, that the words must be given their natural meaning and we would not be justified in trying to paraphrase the said expression. If the Legislature intended to provide that the powers under Section 84(c) of the Act would be exercised only if the possession or occupation was against any prohibition as such in the Act itself, it would have clearly said so. The words are "to the use and occupation of which he is not entitled under the said provisions" and they can only mean that the provisions do not entitle him to use and occupy the said land. The words "the said provisions" do not mean merely the provisions relating to transfers. In clause (a) of Section 84, the words used are "under the provisions of this Act", while in clause (c) the words are "under the said provisions." They can only mean the provisions of the Act, and if it is shown that the occupant is not entitled under any of the provisions of the Act to occupy or use the land and if there is no provision for eviction of such persons, Section 84 would apply.

The Division Bench, thereafter, held thus :-

"If the clause is construed to mean "to the use or occupation of which he is not entitled to because of the provisions of the Act" the clause will be almost redundant."

5-A. Mr. Joshi, Advocate appearing for the respondent No. 1 referred to another para, from the said judgment on page 258 (Page 756 of 1969 Mah. Law Journal Paras 11-12. Edt.), which reads thus :

"When construing Section 84 of the Act, we must bear in mind the well settled rule that provisions creating new jurisdiction and ousting that of Civil Court must be strictly construed. This would be moreso in a case such as this where the inquiry is summary and it is subject only to the revisional jurisdiction of the Revenue Tribunal. Even so, the rule of strict construction does not mean that by artificial construction the jurisdiction would be cut down and the statutory provision rendered useless.

Section 84 by its opening words relates to a person unauthorisedly occupying the land or wrongfully in possession thereof as qualified by any of the three clauses. Clauses (a) and (b) are clear and do not need any comment. Clause (c) poses the question in relation to such person whether he is not entitled to the use and occupation of the land under any provisions of the Act and whether there is any provision in the Act for his eviction. If these questions are answered in the affirmative, then the Collector would have jurisdiction to evict such an occupant............."

6. Referring to this paragraph Mr. Joshi tried to contend that application filed by the original applicant Maroti Trimbak Gayke, under Section 98 of the Hyderabad Tenancy and Agricultural Lands Act, is maintainable. In my view, the judgment referred to above, if read in its entirety, coupled with the provisions of Section 84(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, the combined reading would reveal that words "the provisions" appearing in Section 84(1) are considered and interpreted by the Division Bench and, therefore, the jurisdiction vested in the authorities under Section 84(c) of the Bombay Tenancy and Agricultural Lands Act, 1948 is limited to the grievances raised by the petitioner relating to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 as laid down in the said judgment. Therefore, it cannot be read from the said judgment that if somebody is having grievances, which are foreign to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 still, application under Section 84(c) can be entertained by the same authority and eviction can be ordered. In this view of the matter, I am not inclined to accept the submission made by the learned counsel Shri Joshi, on behalf of the respondent No. 1.

7. The learned Deputy Collector, Land Reforms as well as the Member of the MRT, have not properly appreciated the ratio of the Division Bench judgment, referred to above in the matter of Maltasha Savanna v. Khadir Ajam reported in 1969 Mh.L.J. 753 = 1969 TLR 252.

8. The learned counsel for petitioners Mr. Patni also referred to another judgment of this Court in the matter of Sampat s/o Zingu v. Farooq Ali s/o Chunnilal and others .

This Court in para 4 of the judgment in Sampat's case (supra) observed thus :

"Another aspect of the matter is as to whether, could the present petitioner make the application under Section 98 of the Act and that too at such a late stage i.e. after about 17 to 18 years. In fact, if at all the case of the petitioner was that he was a tenant on the field in question, he could have conveniently approached the proper. Authority under the Act in accordance with the provisions of Section 32(1) read with Section 8 of the Act. However, the present petitioner was not even diligent enough in taking proper steps in the matter. The learned Member of the Revenue Tribunal, who dealt with the appeal, therefore, rightly observed that the relief was not available to the petitioner by the present application under Section 98 of the Act. The view taken in the case of Kerba Bhivaji Shinde v. Sallubai w/o Nagorao , clearly establishes that whenever there is a dispute between the landlord and the tenant in respect of the tenanted land, the tenant should resort to the provisions of Section 32(1) of the Tenancy Act and no other section is available to the tenant. In the instant matter, the point to be seen is that as to whether could the present petitioner be said to be a tenant of the respondent No. 2 and also of the respondent Nos. 3 and 4. The petitioner has claimed his tenancy from Farooq Ali and at the same time he was also claiming to be a co-tenant with one Maruti. It was his case in the application, which was filed on 10-2-1958 that he was cultivating the land of Shri Ganpat s/o Maruti from last ten years along with Farooq Ali and hence his name should have been entered in the protected tenancy register and other village record. In fact, even from the contents of his application and his case put up before the Authorities below, the petitioner appeared to have been shifting his stand quite constantly. It is pertinent to note that all through this litigation this Ganpat is nowhere in the record nor he is in any way made party to the proceedings. It is important to note that it is his own case that his name is not recorded as a protected tenant in the relevant certificate. When this Farooq Ali, in fact, could not be said to be the owner of the field in question and, moreso, when in execution of the decree this Field Survey Nos. 93 and 94 have gone to Sukhlal, the question, could it be said that the present petitioner established his relationship as a landlord and tenant with Sukhlal. For invoking the provisions of Section 98 of the Act, relationship of landlord and tenant between the respondent No. 2 and petitioner was required to be necessarily established. However, in the instant matter, this is totally missing and, therefore, as is rightly pointed out by the learned Counsel for the respondents Nos. 3 and 4 Shri P. F. Patni that for creating a tenancy on the fields in question, Farooq Ali was absolutely a stranger and he had no right whatsoever to create any tenancy in favour of any one of the fields in question and if at all any such tenancy is created, that is absolutely unauthorised and thereby the person claiming through him as a tenant could be said to be nothing but a person in wrongful possession or a trespasser. I do see much substance in this argument of the learned counsel for the respondent and I have no difficulty in agreeing with him on this point."

9. I am in respectful agreement with the view taken by this Court, which, in fact, is in consonance with the law laid down by the Division Bench of this Court in Mallasha's case (supra).

10. After referring to the judgments of this Court, the facts now in the case at hand needs to be considered :-

Admittedly, the certificate under Section 6 of the said Act of 1954 is granted in favour of the respondent No. 1 and he has deposited the amount of occupancy price, as claimed by him. There is also no dispute that the correction in the name of respondent No. l is carried out by the revenue authority. A pointed query was put to Mr. Joshi, by me to point out any single circumstance from the material on record, to show that any right as a tenant is crystallized in favour of the respondent No. 1 under the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Mr. Joshi is unable to lay his hands on any such material on record. In the absence of relationship of landlord and tenant between the petitioners and the respondent No. 1, the status of the respondent No. 1 as a tenant, under the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950 is not established. Unless that relationship is established, the provisions laid down under Section 98 of the Act, cannot be resorted to, by the respondent No. 1.

11. The Deputy Collector of Land Reforms, as well as the MRT have misinterpreted the Division Bench judgment of this Court and the provision of Section 98 of the Act. In fact, the Deputy Collector has no power, authority and jurisdiction to entertain the application under Section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, filed by the respondent No. 1. The action and/or order passed by the Deputy Collector is without power, authority and, therefore, needs to be quashed and set aside. The MRT has also, as stated above, did not consider the Division Bench judgment of this Court properly and confirmed the judgment and order passed by the learned Deputy Collector, Land Reforms.

12. The present petition is filed by the petitioner under Article 227 of the Constitution of India. It is, in fact, duty of this Court under Article 227, to see that the Tribunals and Courts functioning within the jurisdiction of this Court, shall remain within their bounds. Here, it is a clear case of lack of power and jurisdiction to entertain and decide the application filed by the respondent No. 1. In this view of the matter, the judgment and order passed by the learned Deputy Collector, Land Reforms, under Section 98 and which is subsequently confirmed by dismissing the appeal by the learned MRT by its judgment and order dated 27th February, 1989, needs to be quashed and set aside.

13. "In the result, the writ petition is allowed, the judgment and order passed by the Deputy Collector, Land Reforms in File No. 81/LR/TNC/A/62 No. 153/83, dated 10th May, 1985 is quashed and set aside. The judgment and order passed by the learned Member, MRT, Aurangabad in Appeal No. 89/A/86/A dated 27th February, 1989, is also quashed and set aside. The application filed by the respondent No. 1 under Section 98, before the learned Dy. Collector, Land Reforms, Aurangabad stands dismissed. No Costs."

14. Rule made absolute accordingly in above terms.