JUDGMENT
1. The petitioners in this petition under Article 227 of the Constitution of India challenge the decision of the Gujarat Revenue Tribunal dated 29.8.1985 in allowing the Revision Application No. TEN.B.A.1205/84 by holding that the Deputy Collector has no jurisdiction to summarily evict the respondents under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ‘the Act’) and thereby setting aside the order dated 10.9.1984 passed by the Deputy Collector in Tenancy Case No. Kundasan/84.
2. The petitioners, by an Agreement to Sale dated 29.6.1970, sold the land bearing survey no. 200 (Block No. 279) admeasuring 6 Acres 21 Gunthas of village Kundasan, Taluka Gandhinagar to the respondents for Rs. 1,26,051/-. As per the agreement to sale, Rs. 10,000/were paid by the respondents and the parties had agreed that the remaining amount shall be paid within 10 days of the date of execution of the agreement to sale. The parties also had agreed to the execute the registered sale deed thereafter. The respondents paid the remaining amount of purchase price to the petitioners in two instalments i.e. one of Rs. 54000/- on 13.9.1979 and another of Rs.62000/- on 29.9.1979. The respondents paid the total amount of Rs. 1,26,000/-within three months and the said amount was received by the petitioners and the petitioner no.1, in token of receipt of the amount, signed the agreement to sale and the remaining amount of Rs. 51/- was to be adjusted towards the expenses to be incurred for registration of the sale deed. The respondents asked the petitioners to execute the sale deed. However,it appears that one-half undivided share of the land of survey no. 200 along with well, electric pump etc. on the land for Rs. 4500/- regarding the share of petitioners nos. 1 to 4 had been sold and the sale deed was duly registered on 26.10.1979. The respondents paid the amount of purchase price upon which the possession of the entire land was given to the respondents and the petitioners told the respondents that the remaining one-half of the land may be sold and document may be executed afterwards. It appears that the respondents waited for a long time and requested the petitioners to execute the document of sale in respect of remaining one-half of the land in dispute. However,it is the case of the respondents that for one or the other reason, the petitioners delayed the execution of the sale deed, and in spite of the fact that the respondents, with the intervention of one Babubhai paid Rs. 23000/- on 29.12.1981 for the expenses of registration of sale deed, the petitioners did not execute the sale deed for the remaining one-half of the land of survey no. 200. The respondents, after serving a notice dated 28.3.1982 asking the petitioners to execute the sale document for remaining one-half of the land of survey no. 200, filed a civil suit in the Court of learned Civil Judge (Senior Division) Narol, for specific performance on the strength of banakhat executed by the petitioners.
3. The petitioners filed an application before the Collector, Gandhinagar on 12.7.1982 alleging inter alia that the respondents are not holding any agricultural land within 8 k.ms. from the disputed land and they are not residing within 15 k.ms. and, therefore, they are not the agriculturists and, therefore, the transaction which was entered into between the parties is invalid and it contravenes the provisions of section 63 of the Act. The petitioners also contended that the respondents are in unauthorised possession of the land and they should be summarily evicted from the disputed land under section 84 of the Act.
4. Before the Deputy Collector,the respondents raised objection regarding the jurisdiction to proceed with the inquiry under section 84 of the Act. However, the Deputy Collector, by the impugned judgment and order dated 10.9.1984, came to the conclusion that the respondents were in wrongful possession of the suit land and, therefore, they are required to be evicted under section 84 of the Act.
5. Against the aforesaid order, the respondents preferred revision application before the Gujarat Revenue Tribunal. The Gujarat Revenue Tribunal allowed the said revision preferred by the respondents by upholding the contentions raised by the respondents that the Deputy Collector has no jurisdiction to summarily evict the respondents who are in possession of the suit land by virtue of a registered sale deed. Accordingly, the Tribunal set aside the order passed by the Deputy Collector. As stated above, the petitioners have challenged the said order of the Gujarat Revenue Tribunal in this petition.
6. Mr.S.K.Jhaveri,learned Counsel appearing for the petitioners, after having invited my attention to the finding recorded by the Deputy Collector, submitted that the Gujarat Revenue Tribunal has exceeded its jurisdiction by entertaining the revision application preferred by the respondents as none of the ingredients of section 76 are attracted. In the submission of Mr. Jhaveri, the Tribunal wrongly appreciated the facts stated by the respondents even though they are inconsistent with the findings recorded by the Deputy Collector. After inviting my attention to certain findings recorded by the Deputy Collector, Mr.Jhaveri submitted that the present case is not merely a case of sale, but the question involved in the present case is of unauthorised occupation and remaining in wrongful possession of at least half of the disputed land along with fruit bearing trees etc. which is not the subject matter of the sale deed and, therefore, the respondents have trespassed on at least half of the disputed land not sold to them and the present case being the case of summary eviction under section 84 of the Act, the Deputy Collector was justified in proceeding with the case. Mr.Jhaveri further submitted that there being no definite portion marked out in the sale deed, as such they were not put into possession of any definite portion. In the submission of Mr.Jhaveri, the respondents, at the best, were in joint possession with the petitioners and their conduct in restraining the petitioners from entering the field amounted to their being in unlawful possession. Mr.Jhaveri also submitted that the respondents are not agriculturists within the meaning of section 2(2) of the Act and even though the Mamlatdar is required to decide the question as to whether a person is an agriculturist or not, under section 70(a) of the Act, the Deputy Collector can incidentally decide the said question as no appeal is provided against the order passed under section 70(a) of the Act and since the Deputy Collector in the instant case has exactly done the same thing, his order cannot be said to be illegal. Reliance is placed on the decision of this Court in the case of Bapubhai Vs. RV Mehta, 8 GLR 110.
7. Mr.A.J.Patel, the learned Counsel appearing for the respondents, on the other hand, while supporting the decision of the Revenue Tribunal has submitted that the Deputy Collector has no power and authority to decide the matter under section 84 of the Act. In the submission of Mr.Patel, unless the proceedings are initiated under section 84C of the act, no order of eviction can be passed. Mr.Patel submitted that even as per the say of the petitioners,the petitioners and respondent no.1 have become co-owners of the land in question. Therefore, the respondents can never be said to be in an unauthorised or wrongful occupation of the land, especially when the possession of the respondents is pursuant to the sale deed and agreement to sale. Therefore, the application under section 84 of the Act which contemplates summary eviction does not arise. Mr. Patel also submitted that the Deputy Collector, under section 84 of the Act, has no right to decide the question of title or the question arising under section 70 of the Act.
8. In order to decide the rival contentions, it is necessary to refer to the relevant provisions of the Act. Section 2(2) defines ‘agriculturist’ to mean a person who cultivates land personally. Section 2(5) gives the meaning to the word ‘to cultivate’ with its grammatical variations and cognate expressions to mean to till or husband the land for the purpose of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression ‘uncultivated’ shall be construed correspondingly. The explanation given to this definition says that a person who takes up a contract to cut grass, or to gather the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land. Section 2(6) defines ‘to cultivate personally’ to mean to cultivate land on one’s own account—
(i) by one's own labour, or
(ii)by the labour of any member of one's family,or
(iii)under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in cash or kind but not in crop share.
Section 70 of the Act deals with the duties and functions to be performed by Mamlatdar. Under clause (a) of section 70, Mamlatdar is required to decide whether a person is an agriculturist. Similarly, under clause (mb) of section 70, Mamlatdar is also required to issue a certificate under section 84A and decide under section 84B or 84C whether a transfer or acquisition of land is invalid and to dispose of land as provided in section 84C. Section 74 of the Act provides an appeal against the order of Mamlatdar to be filed before the Collector in the cases referred therein. Reading the same, it is clear that no appeal is provided against the decision taken under clause (a) to section 70 as to whether a person is agriculturist or not. However, appeal is provided where the decision is taken under section 84A, 84B or 84C.
9. In order to appreciate the contentions about the exercise of revisional powers by the Tribunal, it is necessary to refer to the provisions of section 76 of the Act. The Revenue Tribunal can exercise its revisional powers under clauses (a), (b) and (c) when the order of the Collector is contrary to law; when the Collector has failed to determine some material issue of law; or (c) when there is a substantial defect in following the procedure provided by the Act (or that there has been failure to take evidence or error in appreciating important evidence) which has resulted in the miscarriage of justice. Since the question of exercise of power under section 84 of the Act is involved in the present case, it is also necessary to reproduce the provisions of section 84 of the Act which read as under:-
"84. 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,
may be summarily evicted by the Collector."
Section 84A deals with validation of transfer made before appointed day. Similarly, section 84B deal with certain transfers made between appointed day and commencement of Amending Act, 1955 invalid. Section 84C is relevant for our purpose which provides that where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, the Mamlatdar shall issue a notice and hold an inquiry as provided in section 84B and decide whether the transfer or acquisition is or is not invalid. Section 84C further provides that if after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid, unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land along with the rights and interest therein to the position in which it was immediately before the transfer or acquisition, and the land is so restored within that period.
Since the petitioners have filed an application before the Deputy Collector for the alleged breach of section 63 of the Act, under which the transfers to non-agriculturists are barred, rest of the provisions are not discussed for the time being.
10. Dealing with the first submission of Mr.Jhaveri regarding exercise of revisional powers by the Gujarat Revenue Tribunal, I am of the view that the said contention was raised just for the sake of raising. The Tribunal has decided the revision application without entering into the merits of the case by observing whether the respondents are agriculturists holding lands at village Chenpur, taluka Gandhinagar and the lands which they had purchased at village Kundasan, are or are not within the limits of 5 miles from the said land at Chenpur or whether they are agriculturists or not and cultivate the land personally or not would fall under section 70(a) of the Act which would be a matter to be decided by the Mamlatdar under section 70(a) of the Act. Since the Tribunal has merely decided the question whether the application of the petitioners would fall under section 84 or 84C of the Act which was the material issue of law, in my opinion, the Tribunal was justified in entertaining the revision application. The Revenue Tribunal is required to give a finding as to whether the order of the Collector is contrary to law and/or the Collector has failed to determine some material issue of law. Since the question raised before the Tribunal was a question of law regarding the power of the Collector, it is too much to contend that the Tribunal has wrongly exercised power under section 76 of the Act. I, therefore, see no merit in the first submission of Mr. Jhaveri and it is rejected.
11. The question involved in the case on hand is whether the respondents are the agriculturists or not and/or they are trespassers being in unlawful possession of the land in question and for determination of the same, as to who is the competent authority, according to the petitioners, the Deputy Collector can go into such questions under section 84 of the Act, while on the other hand, it is the case of the respondents that these questions cannot be decided under section 84 of the Act. Therefore, it is necessary to understand the scheme of the Act.
12. Section 70(a) of the Act which deals with the duties and functions to be performed by the Mamlatdar also casts duty on the Mamlatdar to decide whether a person is an agriculturist or not. Clause (mb) also casts duty on the Mamlatdar to issue certificate under section 84A and to decide under section 84B or 84C whether a transfer or acquisition of land is invalid and to dispose of the land as provided in section 84C. In view of this, it is clear that the Mamlatdar is the authority who is competent to decide whether a person is an agriculturist or not and is also a competent officer to issue certificate under section 84A and to decide the matter under section 84B or 84C whether a transfer or acquisition of land is invalid and to dispose of the land as provided in section 84C. Section 84C(1) contemplates inquiry to be made by the Mamlatdar and after the conclusion of the inquiry, to decide as to whether the transfer or acquisition is or is not invalid. Sub-section (2) of section 84C also provides that if after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid unless the parties to such transfer or acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land along with the rights and interest therein to the position in which it was immediately before the transfer or acquisition and the land is so restored within that period.
Reading the provisions of section 84C of the Act, it is crystal clear that it is within the exclusive jurisdiction of Mamlatdar acting under section 70, read with section 84C of the Act, to decide whether the transfer or acquisition of land is or is not invalid. Once the Mamlatdar has exclusive jurisdiction to decide the question under section 70 of the Act as to who is an agriculturist within the meaning of section 70(a) of the Act or a protected tenant or a permanent tenant within the meaning of section 70(b) of the Act and is also competent to decide the question of issuance of certificate under section 84A and to decide the question under section 84B or 84C of the Act,as to whether the transfer or acquisition of land is invalid and to dispose of the land as provided in section 84C, this question cannot be decided by any other authority under any other provision, even incidentally.
13. Mr.Jhaveri has submitted that section 94 is a provision of the very Act and, therefore, in this, the remedy of summary eviction by the Deputy Collector can incidentally decide this question. Mr.Jhaveri has invited my attention to the decision of the Division Bench of this Court in the case of Bapubhai Lunvir Vs. R.B.Mehta, 8 GLR 110 wherein the Division Bench observed that when an authority has been given power to decide or determine something,it has implied power to decide not only that something but also incidental and subsidiary matter which will enable it to decide the principal matter in regard to which authority is conferred. That is not the case here. The Mamlatdar who is the competent authority is entrusted with the power to decide the question under section 70(a) and section 84A, 84B and 84C and, therefore, as stated above, those questions are to be decided only by the Mamlatdar and no other authority can go into such questions. In view of this,it is not possible for me to accept the submissions of Mr.Jhaveri that the incidental questions can be decided by any other authority.
14. I am supported in my view by the decision of this Court in the case of Mohmadkhan Jamiyakhan Vs. Dadamiyan Mohmadmiyan, 11 GLR 595. Of course, that was a question under section 70(b) of the Act i.e. the tenant, while we are concerned with the case of an agriculturist. However, the principle remains the same. This Court (Coram : J.B.Mehta,J.) specifically observed that “Once we held that the authority under section 70(b) has exclusive jurisdiction as per the settled legal position, there is no escape from the conclusion that no other authority under the Tenancy Act even incidentally could go into this question and this issue wherever raised before any authority must be referred to the Mamlatdar under section 70(b) who aline had jurisdiction to decide this issue and who can give a finding on this question”.
15. Though Mr.Jhaveri raised this question alternatively as in his submission, the Deputy Collector is competent to decide the question involved in this matter under section 84 of the Act, after inviting my attention to section 84 of the Act, Mr.Jhaveri submitted that section 84 authorises Deputy Collector to determine the question whether a person is in unauthorised occupation or wrongful possession of anything. In the submission of Mr.Jhaveri, the case of the petitioners is squarely covered under clauses (a) & (c) of section 84 which deal with 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 and 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 and, therefore, the Collector can summarily evict such persons. He has relied upon the decision of this Court in the case of Bavjibhai Morarbhai Vs. Jagubhai Fakirbhai, 22 GLR 917. Reading the said judgment, it appears that the petitioner of the said case filed an application under section 84 of the Act before the Assistant Collector. The said application was rejected on the ground that he was not competent to decide the same. The Assistant Collector who is also simultaneously an officer exercising jurisdiction under section 79A of the Bombay Land Revenue Code, 1879 tried to pass an order of eviction against the opponent on the ground that the land was a new tenure land in the hands of the petitioner and, therefore, the opponent could not get into possession. The Assistant Collector, therefore, passed an order of eviction. The opponent in the said case filed a revision before the Gujarat Revenue Tribunal. The Tribunal agreed with the Assistant Collector that section 84 of the Act was not attracted and, therefore, confirmed that part of the order of the Assistant Collector. The Tribunal, however, was of the view that the Assistant Collector exercising powers under the Land Revenue Code is of a different character and while exercising jurisdiction under section 84 of the act, the Assistant Collector was not competent to act under the Land Revenue Code. The Tribunal, therefore, allowed the revision application and set aside the order of summary eviction passed by the Collector. That order of the Tribunal was challenged before this Court. After considering two rulings of the Bombay High Court, namely Suleman Hasham Vs. Kashiram Bhau, 60 BLR 1119 and Mallasha Sayabanna Mangonda Vs. Khadir Ajam Aherwadi, 71 BLR 523, this Court (Coram:N.H.Bhatt,J.) observed as under:
” In that case, the Court held that a Collector under summary proceedings under section 84 of the Act could not decide questions of title in relation to the land in dispute. This proposition was not called in question. If after the evidence was laid before him, the Collector or the Assistant Collector exercising jurisdiction under section 84 of the Act finds that there have arisen complicated questions of title, he may drop the proceedings at that stage. The application of the applicant under section 84 of the Act has not been rejected on this ground but it has been rejected only on the ground that the Court had no jurisdiction. In my view, this case falls squarely within section 84, clause (c)of the Act. The respondent, as alleged by the petitioner, is unauthorisedly and wrongly in possession of the land in question. The petitioner has also alleged that the respondent is not entitled to the use and occupation of the land under the provisions of the act because, he is branded as a trespasser and we can take judicial notice of the fact that in the set of allegations of this type, the provisions of the Bombay Tenancy Act do not provide for the eviction of such persons. When no right is attributed or claimed by the respondent under the provisions of the Bombay Tenancy Act, it can well be said that the latter part of section 84 (clause c) will not at all be attracted.”
Reading the observations of N.H.Bhatt,J. in the case of Bavjibhai (supra), it is clear that the Collector, under summary proceedings under section 84 of the Act, cannot decide the questions of title. In any case, if after the evidence was led before him, the Collector or Assistant Collector exercising jurisdiction under section 84 of the Act finds that there have arisen complicated questions of fact, may drop the proceedings at that stage. In other words, even reading the observations of N.H.Bhatt,J., it is clear that the complicated questions of title cannot be decided by the Assistant Collector. Since in the said case, the Assistant Collector rejected the application without entering into the merits of the case on the ground of want of jurisdiction, the opponent in the said case was declared a trespasser. But that it not the case before me. In the present case, it is an undisputed fact that the parties have executed sale deed with respect to the land in question and, therefore, the respondents are having a valid title over the land in question. In this view of the matter, when the party is coming forward armed with title, the Collector or Deputy Collector in summary proceedings under section 84 of the Act, cannot decide the question of title in relation to the land in question. In this view of the matter, the judgment of this Court cited by Mr.Jhaveri in the case of Bavjibhai (supra) will be of no assistance to him.
16. One more decision of the Supreme Court was cited by Mr.Jhaveri to substantiate his submission that it is open for the Deputy Collector to decide the question of title, reported in AIR 1967 SC 651 in the case of Bai Achhuba Amarsingh Vs. Kalidas Harnath. The Supreme Court in the said judgment observed that no doubt, sections 63 and 64 of the Bombay Act render certain transactions invalid, but where advantage is sought to be taken of the invalidity of a transaction on the ground that it contravenes sections 63 and 64 and relief such as that awardable under section 84 of the Act is sought, it becomes necessary for the Collector to adjudicate upon the dispute and decide whether the transaction is or is not rendered invalid by either of these provisions. The Collector’s finding that the transfer is in contravention of section 63 or section 64 is tantamount to a declaration that the transfer is invalid. Reading the said judgment, it appears that the apex Court proceeded onits own facts while considering the question of a sale deed and the question of applicability of sections 63 and 64. It is necessary to reproduce the observations of the apex Court at page 654 of the said judgment wherein it is observed as under:-
"Some authority must determine whether in fact the transfer is in contravention of either of these provisions. The question of obtaining such a determination will arise where the transferor has lost possession. For obtaining possession of which the transferor was deprived in consequence of an invalid transfer the Act enables him to resort to the provisions of section 84. Under that provision, the Collector has to ascertain as already stated, whether the transfer is in fact, in contravention of S. 63 or S.64.
xxxxxxx
We may point out that there is no provision in the Act which expressly provides for the making of a formal declaration by any Revenue Authority to the effect that a transfer in contravention of S. 63 or S.64 is invalid. "
Reading these observations, it is clear that the apex Court proceeded on its own facts and it does not apply to the present scenario.
17. Reading the scheme of section 84C, it is clear that the Mamlatdar has a jurisdiction to give declaration after holding necessary inquiry.Not only that, against the order of the Mamlatdar, an appeal and further revision are also provided while against the order of the Collector or Deputy Collector passed in exercise of power under section 84 of the Act which is a summary inquiry, no appeal is provided. In any case, even applying a simple logic that the highly disputed questions of title cannot be decided in a summary inquiry, where a provision is made in the Act by which a particular officer is entrusted with the power to hold inquiry and to give a declaration, I am of the view that ipso facto, the judgment of the apex court does not apply to the facts of the present case.
18. In this regard, it is worthwhile to refer to another decision of the apex Court in the case of Vallabhbhai Nathabhai Vs. Jivibai & ors., AIR 1969 SC 1190 wherein the scope of section 84 of the Act was considered. It was a case where the appellant- tenant voluntarily handed over possession of the land to the respondent. It was an undisputed fact in the said case that the surrender was not in writing and the procedure of inquiry and verification required by section 15 of the Bombay Tenancy and Agricultural Lands Act was not gone through. The surrender though voluntarily was not in accordance with section 15 and, therefore, was not valid and binding on the appellant. It was also not disputed that the respondent no.1 thereafter started personally cultivating the said land. Later on, the appellant applied to the Deputy Collector under section 84 of the Act for summary eviction of the respondent no.1. The Deputy Collector dismissed the application holding that the tenant’s remedy lay under section 29(1) of the Act. The Gujarat Revenue Tribunal, however, in a revision by the tenant set aside that order holding that section 84 and not section 29(1) applied. The respondent no.1 thereupon filed a writ petition in the High Court and the High Court held, on interpretation of sections 29(1) and 84, that section 84 did not apply in such cases and set aside the Tribunal’s order. The Supreme Court, while deciding the appeal filed by the tenant, observed as under:-
“The words’any person unauthorisedly occupying or wrongfully in possession of any land’ in section 84, no doubt, are words of wide import and would include a landlord who is in unauthorised occupation or is wrongfully in possession. A landlord who under an invalid surrender is in possession of the land is, no doubt, a person in unauthorised occupation or is wrongfully in possession. But then section 84 in express terms limits its application to three types of cases only, namely, where (a) the transfer or acquisition of the land etc. is invalid under the Act, or (b) the management of which has been assumed under the Act, or (c) to the use and occupation of which he is not entitled under the provisions of the Act and the said provisions do not provide for the eviction of such person. The case where the surrender of lease is invalid for want of writing and verification under section 15 would fall only under clause (c). This condition shows that while giving drastic powers of summary eviction to an administrative officer, the legislature was careful to restrict his power firstly because the result otherwise would be to deprive the person evicted under section 84 of his remedy of appeal before the Collector which he would have if the order were to be passed under section 29(1) and secondly, because it would enable a tenant to bypass a judicial inquiry by the Mamlatdar under section 29(1) by directly applying to the Collector under section 84. Such a result could not have been intended by the legislature. Therefore, the contention that Ss. 29(1) and 84 provide alternative remedies and a choice to the tenant cannot possibly be correct.”
Applying the said principle in the present case, I am of the view that if an action lies under section 84C of the Act, one cannot bypass to resort to section 84 straightaway. As observed above, instead of deciding the question of title in a summary proceeding under section 84 by the Administrative Officer,it would be worthwhile if it is decided judiciously under section 84C against which an appeal and thereafter revision is provided.
19. Mr.Jhaveri referred to one more decision of the Supreme Court in the case of Mussamia Imam Haider Bax Razvi Vs. Rabari Govindbhai Ratnabhai and ors., 10 GLR 421 where the question before the Supreme Court was whether the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 are applicable to the past tenancy and the matter can be referred to Mamlatdar to decide the same under section 85 of the Act. Considering the facts of the case, the apex Court held that on proper interpretation of the language of the written statement, it is clear that there is no independent plea of tenancy as subsisting on the date of the suit and there was no issue which survived for being referred for the decision of the Mamlatdar under section 85A of the Act. The High Court, therefore, was in error in referring the issue to the Mamlatdar. In other words, it was held by the Supreme Court that the jurisdiction of the Civil Court is not barred in considering the question whether the provisions of the Act are applicable to the disputed land during a particular period.
There cannot be any dispute with regard to the principle laid down by the apex Court. However, in my opinion, the said decision has no application to the facts of the present case. In the case before the Supreme Court, the question was whether a person was a tenant or not could have been decided by the Civil Court while in the present case, the transaction was entered into between the parties after 1955 and as per section 84C, it can be examined under section 84C by the Mamlatdar under section 70(mb).
20. The Supreme Court, in the case of Bhimji Vs. Dundappa, AIR 1966 SC 166, after considering the scheme of sections 29, 70, 85 and 85A, observed as under:-
“The Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction to try a suit by a land owner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage, and the Civil Court has jurisdiction to entertain such a suit; but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant,the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar.”
This judgment has been followed by this Court in the case of Mohmadkhan (supra) by observing as under:-
“However startling the legal position appears at first sight, so far as the scheme of the Tenancy Act is concerned, the settled legal position is that because the tenancy authorities have exclusive jurisdiction under section 70(b) to decide whether a person is a tenant or not, a plea raised by the defendant excludes the jurisdiction of even a competent civil court which is otherwise competent to decide the suit, as it would have no jurisdiction to decide the issue. The only authority in the State to decide the question whether a person is a tenant or not is the Mamlatdar under section 70(b). In that view of the matter, even the Prant Officer under section 84 would have no jurisdiction to decide the issue raised before him that a person was a tenant or not. ”
21. In the case of Suleman Hasham Vs. Kashiram Bhau, 60 BLR 1119, the Division Bench of Bombay High Court in terms held that the Collector has no jurisdiction to decide the question of title as to whether a person is a protective tenant or not in a proceeding under section 84 of the Act. The Full Bench decision in the case of Nivrutti Laxman Vs. Shivdayal L.Sarda, 61 BLR 957 has also in terms held at page 959 that the Mamlatdar can decide the question under section 70(b) whether a person is a tenant or not even if such a question arises in the civil court under the Tenancy Act. He would have the jurisdiction to decide it and the Civil Court is not competent to decide it. The Full Bench of the Bombay High Court in terms followed the decision of the Bombay High Court in the case of Dhondi Tukaram Vs. Dadoo Piraji, AIR 55 BLR 663 wherein a view was taken that the effect of section 70(b) and 85 in the light of the other provisions of the Act was that if in a suit filed on the footing that he is a trespasser, if he raises a plea that he is a tenant or a protected tenant, the proper procedure to adopt would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar and to dismiss the suit straightaway.
22. In view of the settled legal position, I am clearly of the opinion that the Mamlatdar has the exclusive jurisdiction under section 70(a) or 70(b) either to decide the question whether a person is an agriculturist or a tenant or a trespasser. Once this view is taken, it is not necessary for me to refer to certain other subsequent decisions of the Bombay High Court cited by Mr.Jhaveri where a contrary view is taken; namely in the case of Mallasha Sayabanna Mangonda Vs.Khadir Ajam Aherwadi, 71 BLR 523. In that case, the Division Bench took a view that” under section 84 of the Bombay Tenancy Act, the Collector has power and jurisdiction to decide as to whether the occupant is a trespasser or not. In cases where the occupant raises a contention regarding his title which appears to be unspported by any prima facie reasonably reliable evidence and is such as he is entitled to consider in inquiries under the Land Revenue Code or the Tenany Act, he would be justified in considering the question and decide whether he is in unauthorised occupation of the land.A fortiori this would be so, where the contention is patently false or untenable. If, however, there are complicated questions of law and facts involved, then he would have no jurisdiction to decide the questions.”
Reading this judgment, it appears that the Division Bench of the Bombay High Court is of the view that the incidental questions can be decided by Collector under section 84 of the Act. It also appears that the Collector can decide the question under section 84 if the occupant fails to produce documents regarding his title. In other words,the occupant is required to come forward with prima facie and reasonably reliable evidence and to contend that he is not a trespasser. With respect to the Division Bench of the Bombay High Court, it is not possible for me to accept this view as I have already taken a view that the Mamlatdar is the exclusive authority to decide the question whether a person is agriculturist, tenant or a trespasser. Therefore, it is not possible for me to accept the view taken by the Bombay High Court in the case of Mallasha (supra).
23. In view of the aforesaid discussion, it is not possible for me to accept any of the submissions of Mr.Jhaveri as I see no merit and, therefore, the same are rejected. In this view of the fact, I am of the view that the petitioners have failed to make out a case warranting interference at the hands of this Court.In my opinion,the judgment and order rendered by the Gujarat Revenue Tribunal in Revision Application No.. TEN.B.A.1250/84 requires no interference and, therefore, the same is confirmed.
The net result of this discussion is that the Deputy Collector has no jurisdiction to summarily evict the respondents who are in possession of the disputed land by virtue of registered sale deed while exercising powers under section 84 of the Act. In view of the fact that the civil suit for specific performance is pending and that the revenue authorities have initiated proceedings under section 84C of the Act,I do not find it necessary to deal with the submissions of Mr.Jhaveri, namely that the present case is of unauthorised occupation and remaining in unlawful possession of at least half of the disputed land which is not the subject matter of the sale deed and a further contention that the petitioners as well as respondents are in joint possession of the disputed land. In my opinion, as observed earlier, this being a subject matter to be decided either by the Civil Court or the revenue authorities or the Mamlatdar, leaving the matter as it is, no opinion is expressed on these questions.
In the result, the petition fails and is dismissed with costs. Rule discharged. Interim relief vacated.
