{"id":130330,"date":"1999-04-28T00:00:00","date_gmt":"1999-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gordhanbhai-chhababhai-patel-vs-rameshchandra-kanubhai-chaudri-on-28-april-1999"},"modified":"2017-03-20T15:52:37","modified_gmt":"2017-03-20T10:22:37","slug":"gordhanbhai-chhababhai-patel-vs-rameshchandra-kanubhai-chaudri-on-28-april-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gordhanbhai-chhababhai-patel-vs-rameshchandra-kanubhai-chaudri-on-28-april-1999","title":{"rendered":"Gordhanbhai Chhababhai Patel vs Rameshchandra Kanubhai Chaudri on 28 April, 1999"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gordhanbhai Chhababhai Patel vs Rameshchandra Kanubhai Chaudri on 28 April, 1999<\/div>\n
Equivalent citations: (1999) 3 GLR 543<\/div>\n
Bench: K Vyas<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 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.\n<\/p>\n
   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.\n<\/p>\n
  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.\n<\/p>\n
   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.\n<\/p>\n
   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.\n<\/p>\n
  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.\n<\/p>\n
   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.\n<\/p>\n
 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—<\/p>\n
\n   \n\n    (i) by one's own labour, or     \n \n\n (ii)by the labour of any member  of  one's         family,or    \n \n\n  (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. \n \n\n<\/pre>\n
   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.\n<\/p>\n
   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:-\n<\/p>\n
    \"84. Any person unauthorisedly occupying or       wrongfully in possession of any land-----\n \n\n    (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.\n \n\n    (b) the management of which has been assumed       under the said provisions, or\n \n\n    (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,\n \n\n    may be summarily evicted by the Collector.\" \n \n\n<\/pre>\n
    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.\n<\/p>\n
    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.\n<\/p>\n
   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.\n<\/p>\n
   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.\n<\/p>\n
   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.\n<\/p>\n
    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.\n<\/p>\n
  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.\n<\/p>\n
  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”.\n<\/p>\n
 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:\n<\/p>\n
      ” 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.”\n<\/p>\n
    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.\n<\/p>\n
   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:-\n<\/p>\n
    \"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.\n \n\n    xxxxxxx\n \n\n    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. \"     \n \n\n  Reading these observations, it is clear that the   apex Court proceeded on its own facts and it does not   apply to the present scenario. \n \n\n<\/pre>\n
   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.\n<\/p>\n
   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:-\n<\/p>\n
     “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.”\n<\/p>\n
    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.\n<\/p>\n
  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.\n<\/p>\n
    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).\n<\/p>\n
  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:-\n<\/p>\n
    “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.”\n<\/p>\n
    This judgment has been followed by this Court in   the case of Mohmadkhan (supra) by observing as under:-\n<\/p>\n
      “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. ”\n<\/p>\n
   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.\n<\/p>\n
   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.”\n<\/p>\n
    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).\n<\/p>\n
   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.\n<\/p>\n
    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.\n<\/p>\n
    In  the  result, the petition fails and is   dismissed with costs. Rule discharged. Interim relief   vacated.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gordhanbhai Chhababhai Patel vs Rameshchandra Kanubhai Chaudri on 28 April, 1999 Equivalent citations: (1999) 3 GLR 543 Bench: K Vyas 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-130330","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGordhanbhai Chhababhai Patel vs Rameshchandra Kanubhai Chaudri on 28 April, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gordhanbhai-chhababhai-patel-vs-rameshchandra-kanubhai-chaudri-on-28-april-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gordhanbhai Chhababhai Patel vs Rameshchandra Kanubhai Chaudri on 28 April, 1999 - 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