Case: Vallabbhai Nathabhai Vs. Bai jivi and Ors

one by the High Court of Gujarat and the other by the High Court of Bombay to which also our attention was drawn. In Shankerlal v. Haria Vagha, Spl. Civil Appeal No. 8 of 1961, D/- 22-8-1961 (Guj) the facts were as follows : One Chandrasingh and his brothers owned Survey Nos. 23/2, 23/3 and 26/5. In 1956-57 opponent 2 surrendered these lands to Chandrasingh who personally cultivated them. Until 1955-56 opponent 1 cultivated Survey No. 26/5. He thereafter surrendered that Survey number to Chandrasingh and his brothers who personally cultivated it thereafter. The Mamlatdar admittedly had held no inquiry in respect of these surrenders under Section 15. On January 28, 1959 Chandrasingh and his brothers said these lands to the petitioners and the petitioners thereafter cultivated them in 1959-60. In 1959 opponents 1 and 2 applied to the Collector under Section 84 and the Collector ordered restoration of possession to opponents 1 and 2. The Gujarat Revenue Tribunal rejected a revision application filed by the petitioners against the said order. In a writ petition under Art. 227 the petitioners raised two contentions before the High Court : (1) that they were not in unauthorised occupation or wrongfully in possession as they derived title from the owners, their vendors, and (2) that in any event the opponents had a remedy under Section 29 (1) and therefore could not have recourse to Sec. 84. As regards the first contention the High Court held that the surrenders by opponents 1 and 2, not being in writing and unverified, were not binding on them, the relationship of tenant and landlord had not, therefore, terminated and opponents 1 and 2 were entitled to possession of the lands. That was the position which obtained on January 28, 1959 when Chandrasingh and his brothers purported to sell the lands to the petitioners. The petitioners, therefore, were in unauthorised possession as Chandrasingh and his brothers were not entitled to possession and could not transfer possession to the petitioners. The High Court also held that the said sale was contrary to Section 64 and therefore invalid and did not create any rights as to ownership or possession in favour of the petitioners. The possession of the petitioners, therefore, was unauthorised and wrongful and Section 84 applied and the first contention failed. As to the second contention the High Court held that under Section 29 (1) a tenant could apply to the Mamlatdar for possession but that required that the right to possession must arise "under the provisions of the Act". If the tenant did not seek to enforce a right arising under any of the provisions of the Act but claimed possession on his own title as a tenant, Section 29 (1) would not apply and his remedy would be under Section 84 only. The High Court held that when a tenant claimed possession not relying upon any incident of his contract of tenancy nor on any provisions of the Act but on his own title to possession, that is, to protect his possession as a tenant against a trespasser Section 84 and not Section 29 (1) would apply even though the land the possession of which he claimed was the land of which he was a tenant and the trespasser was his landlord. What the tenant in such a case was seeking to do was not to enforce his right as a tenant under the provisions of the Act but he was enforcing his right against third parties, namely, the petitioners in that case who were in wrongful occupation. The tenant was claiming possession not under the provisions of the Act but on his own title, albeit as a tenant, against a person who had no title to ownership or possession in the land and therefore Section 29 (1) did not apply to such a case. Consequently, Section 29 (1) was not another provision providing for eviction which opponents 1 and 2 could avail of. In Krishna Mahar v. Hussain Miya, Spl. Civil Appeal No. 207 of 1956 decided by Shah, and Vyas, JJ. on 19-6-1956 (Bom) the respondent was the owner of the land in question. He applied under Sec. 29 (2) to the Mamlatdar. The Mamlatdar passed an order directing the petitioner, the tenant, to hand over possession. The petitioner appealed to the Collector under Section 74 of the Act who set aside the Mamlatdars order. But before the Collector passed his said order the respondent executed the Mamlatdars order and obtained possession. The petitioner then obtained possession in pursuance of the Collectors said order but the respondent forcibly dispossessed him and thereupon on January l0, 1952 the petitioner complained to the Mamlatdar. The Mamlatdar expressed his inability to assist him and thereupon the petitioner applied to the Collector under Section 84. The Collector held that the respondent was in wrongful possession and passed an order of eviction. The Revenue Tribunal however, set aside that order holding that the petitioners application was barred by limitation. An application for condonation of delay was also rejected. The petitioner, thereupon filed a petition under Article 227. The High Court held that there was a clear distinction between an application under Section 29 (1) and one under Section 84, for, under Section 19 (1) whereas the tenant would be claiming the right to possession under the provisions of the Act, under Section 84 he would be claiming the right to possession not under any of the provisions of the Act but on his own title to possession as a tenant. Such an application could be even against a person who was his landlord qua the land in question if such landlord was in unauthorised occupation or wrongful possession. These two decisions again do not lay down anything inconsistent to what we have said above on the scope and interpretation of Sec. 29 (1) and Section 84. We do not therefore see how either of these two decisions can be availed of by Mr. Bhandare in support of his contentions.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not have to decide in the present case whether the said condition of there bring no other provision in the Act providing for eviction of a person in unauthorised occupation or wrongful possession applies only to cases falling under Clause (c) or to all cases under Clauses (a), (b) or (c), as in our opinion the present case is clearly one falling under Clause (c) and not Cl. (a) or (b) of Section 84. Clause (b) obviously cannot apply as the land in question was not one, the management of which was assumed under the provisions of the Act, namely, Sections 44, 45 and 61. So far as Clause (a) is concerned, it applies to cases in respect of the land, the transfer or acquisition of which either by the act of parties or by operation of law is invalid under the provisions of the Act. Clause (a) clearly refers to Ch. V of the Act which lays down certain restrictions on transfers of agricultural lands and acquisition of estates and lands. Sections 63, 64 and 65 in that chapter prohibit transfers of agricultural land to non-agriculturists and recognize only sales to persons and at prices specified therein.Clause (a) therefore, applies to transfers or acquisitions which are in breach of the provisions of Ch. V and possession or occupation whereof has been obtained under such invalid transfers or acquisitions. That being the position, the instant case would fall only under Clause (c) and not under Clause (a) as contended by Mr. Bhandare, and therefore, the condition that S. 84 would only apply to cases for which there is no other remedy under any of the provisions of the Act must apply to the present case. This condition shows that while giving drastic powers of summary eviction to an administrative officer the legislature was careful to restrict this 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 by-pass a judicial inquiry by the Mamlatdar under Sec. 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.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 of a person unauthorisedly occupying or wrongfully in possession of the land (a) the transfer or acquisition of which 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.5. In the case of a surrender which is not valid and binding on the tenant there is, as aforesaid, no termination of tenancy, and therefore, the landlord a not entitled to retain the land even though possession thereof has been handed over to him or has been voluntarily taken by him. The position in such a case is that the tenant has a right to apply to the Mamlatdar for restoration of possession to him claiming that there has been no termination of tenancy, that his possession continues to be protected by the provisions of the Act and that, therefore, possession should be restored to him. Such an application lies under Sec. 29 (1) and, when so made, it becomes the duty of the Mamlatdar under Sec. 70, Cl. (n) read with Sec. 29 (1) to put the tenant in possession of the land in question "under this Act". In such a case the tenant is claiming possession under the provisions of the and not on the strength of his own title, as when he applies for possession against a trespasser. That clearly being the position, propositions 3, 4 and 5 of Mr. Bhandare cannot be sustained.