Case: Patel Chunibhai Dajibhai Etc Vs. Narayanrao Khanderao Jambekar Andanother

2. There were eight tenants and each of them has filed an appeal. We have thus eight appeals before us. As the landlord was the same person, the respondent in each appeal is the same. The landlord took steps under Ss. 14, 31 and 29 of the Act against each tenant and these have led to the present proceedings. Section 14 gives a landlord power to terminate a tenancy on the ground inter alia of the tenants failure to pay rent by giving the tenant a notice informing him of his intention to terminate the tenancy. Section 31 provides that notwithstanding anything contained in S. 14, a landlord may after giving notice to the tenant terminate the tenancy if he bona fide requires the land for cultivating it personally. Section 29 of the Act states that a landlord shall not obtain possession of land from a tenant except under an order made by the Mamlatdar on the application mentioned in it.3. On May 1, 1956, the landlord had given a notice to the tenants under S. 14. On December 25, 1956, the landlord had given a fresh notice to the tenants under S. 31. On March 28, 1957 the landlord filed applications against the tenants before the Mamlatdar for ejectment under S. 29 on the strength of the notice under S. 31 and thereafter on July 10, 1957, he filed another set of applications for their ejectment on the strength of the notice under S. 14. By various orders made between December 20 and 25, 1957, the Mamlatdar allowed the landlords applications for ejectment on the basis of the notice under S. 14. Thereafter on March 1, 1958, the landlord withdrew his applications for ejectment pursuant to the notice under S. 31. The tenants did not file any appeal against the Mamlatdars orders of ejectment but moved the Collector under S. 76A of the Act for setting them aside. Three successive sets of such applications had been made by the tenants. The first set of applications was made on August 4, 1958. On August 14, 1958, the Collector acting under S. 76A called for the record of the ejectment proceedings before the Mamlatdar. The record did not arrive till December 24, 1958. In the meantime, however, on August 26, 1958 the tenants made the second set of applications under S. 76A. On October 3 and 4, 1958, the Collector appears to have made orders purporting to reject both sets of the tenants applications under S. 76A. On or about October 6, 1958, the tenants preferred a joint application under S. 76A and this was also reject by the Collector on October 17, 1958. On November 7, 1958, the local Congress Committee passed a resolution stating that the tenants were being subjected to harassment and demanding that justice be done to them. A copy of the resolution was sent to the collector. Subsequently on December 24, 1958, the record of the proceedings "called for was received by the Collector. The Collector thereafter gave notice to the parties, heard them and made an order on February 17, 1959 setting aside the Mamlatdars orders of ejectment on the ground that in view of the provisions of S. 32 as amended by Act XXXVIII of 1957 the tenants could not be evicted. The landlord then moved the Revenue Tribunal in revision to set aside the Collectors order of February 17, 1959 but his application were dismissed. He, thereafter, applied to the High Court under Art. 227 of the Constitution to set aside the orders of the Tribunal and the Collector. The High Court allowed these applications and hence the present appeals by the tenants. As there was a separate application to the High Court by the landlord against each of the eight tenants, we have now eight appeals beforefacts in all the appeals are similar. In this judgment, we will refer to the relevant facts in Civil Appeal No. 791 of 1964. Respondent No.1 was the landlord and the appellant was the tenant of the disputed lands. On May 1, 1956, respondent No. 1 gave a notice to the appellant under S. 14 terminating the tenancy. On December 25, 1956 respondent No. 1 gave another notice to the appellant under S. 31 terminating the tenancy. On March 28, 1957 respondent No. 1 filed an application under Section 29 reed with section 31 for recovery of possession of the land;. On July 10, 1957, respondent No. 1 filed another application under S. 29 read with S. 14 for the same relief. By an order dated December 25, 1957 the Mahalkari allowed respondent No. 1s application, under S. 29 read with S. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to respondent No. 1. On March 1, 1958, respondent No. 1 withdrew the application under S. 29 read with S. 31 filed on March 28, 1957. The appellant applied to the Collector of Baroda on August 9, 1958 and again on August 26,1958 under S. 76A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958 the collector called for the records from the Mahalkari, but the records did not reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications. On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. It is said that the letter of the Collector dated October 17, 1958 was only an intimation of the previous rejection, but we think, though the point is not important, it amounted to an order of rejection of the application made on October 6, 1958. On November 7, 1958, the local Congress Mandal Samiti passed a resolution requesting the Collector to reconsider his previous orders. A copy of this resolution was sent to the Collector on November 10, 1958. On November 14, 1958, the appellant again applied to the Collector under S. 76A for revision of the Mahalkaris order. On February 17, 1959, the Collector acting under S. 76A reversed the Mahalkaris order, and directed that possession of the disputed lands be restored to the appellant. An application for revision preferred by respondent No. 1 on March 24. 1959 was dismissed by the Tribunal on February 28 1961. An application under Art. 227 of the Constitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. The appellant now appeals to this Court by special leave.

Reasoning:
Now, on April 1, 1957 the application filed by respondent No. 1 under S. 29 read with S. 31 was pending. Consequently, the appellant could not be deemed to have purchased the lands on April 1, 1957.20. But the application under S. 29 read with S. 14 was not maintainable, as it was filed after April 1, 1957. On this point, we adopt the reasoning and conclusion of the Full Bench of the Bombay High Court in Ramchandra Anant v. Janardan 64 Bom LR 635: (AIR 1963 Bom 79  ). We agree with the following observations of Chainani, C. J., in the aforesaidhas been contended that as there is no provision in the Act that an application on the grounds mentioned in S. 14 cannot be made after April 1, 1957, such an application is maintainable, for since the Legislature has preserved the right to make such an application, it could not have intended that it should not be availed of in any case. There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting S. 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did not intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957 if an application for possession made under S. 29 read with S. 14 after April 1, 1957 is decided in favour of the landlord before the application made by him prior to April 1, 1957 is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was not intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957 clearly indicates that the Legislature contemplated that no such application should be made after April 1, 1957.On this construction of S. 32 (1) it would appear that the application under S. 29 read with S. 14 filed on July 10, 1957 was not maintainable since September 22, 1957, when the amending Bombay Act XXXVIII of 1957 came into force. It is true that on July 10, 1957 the other application under S. 29 read with S. 31 was pending, and consequently the appellant was still a tenant and had not become the purchaser. But S. 32 bars all applications filed after April 1, 1957, and it matters not that the application is made against a person who is still thethis contention found favour with the High Court, we are unable to accept it. Section 34 of Bombay Act XXXVIII of 1957 provided that the aforesaid amendment of S. 32 "shall be deemed to have been made and should have come into force on the date on which the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 came into force". Now, the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 came into force on August 1, 1956. The amended S. 32 must, therefore, be deemed to have been made and to have come into force on August 1, 1956. The section saves all application pending on April 1, 1957, but by necessary implication, it bars all applications filed on and after April 1, 1957. The bar takes within its sweep all applications filed on and after April 1, 1957 whether or not such an application was pending on September 22, 1957; no exception is made in favour of applications filed between April 1 and September 22, 1957 and pending on September 22, 1957. Consequently, the application filed on July 10, 1957, though pending on September 22, 1957, was not maintainable and ought to have been dismissed by thethe instant case, there was no reference by any authority. The Collector could still exercise his revisional powers but he seldom exercises such powers unless some irregularity or illegality is brought to his notice by the aggrieved party. Though S. 76A, unlike S. 76, does not provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under S. 76A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was no ground for interference with the Mahalkaris order. The Collector observed that the appellant had not paid rent for three consecutive years, and his tenancy had been duly terminated by the requisite notice and the findings of the Mahalkari on these points had not been challenged by a regular appeal. The Collector thus upheld and confirmed the Mahalkaris order. He did not specifically deal with the point as to theof the application for eviction in view of the amended S. 32, as the point was not taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record could be passed by the Collector only in the exercise of his revisional power under S. 76A. As he refused to modify, annul or reverse the order of the Mahalkari, he could pass these orders without issuing notice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers wereand were final. The Act does not empower the Collector to review an order passed by him under. S 76A. In the absence of any power of review the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the collector dated February 17, 1959 on this ground.24. The High Court was of the opinion that the Collector could exercise his revisional power under S. 76A only after looking into the record of the impugned order of the Mahalkari. We have come to the opposite conclusion. In exercise of his revisional powers under S. 76A, the Collector may or may not call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, come to the conclusion that there is no ground for interference with the impugned order and that, therefore, the order should be confirmed. The contention of the appellant was that the word "thereon" in S. 76A supports the opinion of the High Court. We do not think so. We think that S. 76A(b) means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, not without jurisdiction. The mere fact that he called for the records is no ground for saying that he could not thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did not call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court notice is issued to the respondent to show cause why it should not be granted, the Court is not debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is no decision which compels the Collector to look into the record before dismissing the petition, though of course he cannot allow the petition without, considering the record and hearing the party supporting the order sought to be revised. However, erroneous those orders of the Collector dismissing the revision might be they were final and could not be reviewed and reopened by him subsequently.25. The High Court also observed that only the act of the final determination by the Collector could be said to be aact and that his order calling or not calling for the record was not an act of anature. But, in the instant case, the Collector not only called for the record but also determined that there was no ground for interference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1959 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground.26. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and could not become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected.27. The High Court set aside the Collectors order on the ground that the amended S. 32 could not affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force; and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But this High Court should have set aside the Collectors order on the ground that having already decided that there was no ground for interference with the Mahalkaris order, the Collector could not subsequently revised that order. We, therefore hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed.