BANDU YESU MALI Vs. VISHNU KUNDLIKA SAWANT

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed with a prayer for quashing the order passed by the Revenue Tribunal after remand in Revision Application No. M. R. T. N. S. VII/1/80 dated 21-1-1984 and the order passed by the Sub-Divisional Officer, Satara Division, Satara in Tenancy Case No. 84/1 of 71 dated 1st June, 1974 and for restoration of the judgement of the Maharashtra Revenue Tribunal, hereinafter referred to as "the M. R. T. ", in Revision Application No. M. R. T. N. S. VII. 18/74 (TEN. AP. No. 96/74) dated 16-10-1974.

(2.) THE facts as narrated in the writ petition may be briefly noticed. The dispute concerns about half the suit land on the Southern side of Gat No. 1253 admeasuring 4 hectares 46 acres i. e. 11 acres, one guntha and assessed at Rs. 74. 75 situated at village Chikhali, Tal. Karad, Dist. Satara. The land hereinafter referred to as "the suit land". The suit land originally belonged to Onkareshwar Devasthan and respondent Nos. 2 to 4 are the Wahiwatdars. It is the case of respondent No. 1 that the entire suit land was leased out to him only by respondent Nos. 2 to 4 and he was exclusively in possession and cultivation of the entire land and the petitioner was taken by him only as a co-sharer perekari i. e. partner in cultivation for many years. However, the petitioner got his name entered in the extract of Record of Right with regard to half of the suit land and, therefore, the respondent No. 1 complained to the revenue authorities in R. T. S. proceedings. These proceedings were initially decided in favour of the petitioner. Against the said judgment and order, respondent No. 1 preferred an appeal being Appeal No. 25/67. The aforesaid appeal was dismissed. However, respondent No. 1 was directed to make an application under section 70 (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") for getting a declaration that the petitioner is not a tenant of the suit land. Instead of filing an application under section 70 (b) of the Act, respondent No. 1 chose to file an application under section 84 of the Act for summary eviction of the petitioner on the ground that the petitioner is unauthorisedly in possession of the suit land. This application was filed on 7th April, 1971. By an order dated 13th July, 1971, the Assistant Collector exercising his powers under section 84 of the Act referred the matter to the Mamlatdar for sending a report as to the status of the petitioner on the suit land. By his report dated 5th June, 1972 the Mamlatdar reported that :

(3.) THE submissions made by the Counsel for both the sides may be noticed. Mr. Rane has submitted that in remanding the matter the High Court has not recorded any findings on the issues arising in the case. The High Court has merely set aside the order of the M. R. T. on the ground that the order is perfunctory and suffers from non-application of mind. Thus the matter was left open to be decided by the M. R. T. The directions were to record a finding as to whether or not the petitioner was in unauthorised occupation of the land. The direction to the M. R. T. not to decide the question of tenancy was appropriately given in view of the provisions of section 84 of the Act. It is submitted that under section 84 of the Act, the Tribunal would have no jurisdiction to decide the question of tenancy. This question could only be decided by the Mamlatdar in the first instance under section 70 (b) of the Act. Keeping these facts in view it had been submitted before the M. R. T. that in view of the unreported judgment cited which has been noticed by the Tribunal, the matter ought to be remanded back to the Mamlatdar for decision under section 70 (b) of the Act. It is submitted that the M. R. T. has wrongly distinguished the aforesaid judgment by holding that the issue of tenancy had already been decided. Unless the Collector comes to the conclusion that the plea put forward is patently false, frivolous and mala fide, the issue of tenancy could only be decided in an application made under section 70 (b) of the Act. If the Collector comes to the conclusion that the plea is false, frivolous and mala fide on the face of it then there is no question of referring the matter to the Mamlatdar for a report. The jurisdiction given to the Collector is very limited as no appeal is provided from the decision. Therefore, the Collector would not enter into complicated questions of fact and law with regard to title. These matters are best left either to the Mamlatdar under section 70 (b) of the Act or the matter ought to be referred to the Civil Court. Any other interpretation, according to the Counsel, would mean that the Collector would have dual jurisdiction i. e. the jurisdiction of the Mamlatdar as also the jurisdiction of the Collector. Secondly it has been submitted by Mr. Rane that a bare perusal of the judgment of the M. R. T. shows that complicated questions of law and fact were involved in order to decide whether or not a valid tenancy existed in favour of the petitioner. It is submitted that the M. R. T. has given the judgment by ignoring the Division Bench decision of this Court in the case of (Mallasha S. Mangonda v. Khadir A. Aherwad) reported in 71 Bom. L. R. 523.