Rev. Applns. Nos. 355 and 356/Ten. of 1961

8th April, 1963.

Petitioner Counsel: C.P. Kalele
Respondent Counsel: Y.V. Jakatdar

Cases Cited:
1962 NLJ 354.
SCA No. 941 of 1956 decided on 9-7-56.
SCA No. 764 of 1955 decided on 2-8-1955.
SCA No. 207 of 1956 decided on 19-6-1956.
1962 NLJ 558.

JUDGMENT

ORDER:- These two revision petitions, which arise out of the orders passed by the Sub-Divisional Officer, exercising Collector's powers, Malkapur, in Revenue Cases Nos. 13 and 11/59 (21) of 1960-61, decided on 17-7-1961, raise a common question whether section 120 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as the New Tenancy Act) was applicable to the proceedings. They were, therefore, heard together and will be disposed of by this common order. Fields survey Nos. 4, 151 and 152 situated at mauza Dhamangaon Badhe, taluq Malkapur, belong to non-applicants Rameshchandra and his sister Shakuntala respectively. They had started proceedings for summary eviction of the petitioners Sitaram and his brother Bhagwan under section 120 of the New Tenancy Act on the allegation that they were unauthorisedly occupying the land to the use and occupation of which they were not entitled under the provisions of the New Tenancy Act and they were in wrongful possession since 1-4-1959 and were held to be trespassers in Revenue Case No. 1/59(1) of 1960-61. The petitioners Sitaram and Bhagwan had opposed the applications mainly on the following three grounds:

(i) that they were tenants of the land and were actually served with notices under section 38 of the New Tenancy Act and proceedings for possession of the land were also started against them under section 36 of that Act by the non-applicants;

(ii) that section 120 of the New Tenancy Act was inapplicable in the instant cases even if it was found that they were trespassers; and (iii) that the applications were barred by time.

On the first point, the Sub-Divisional Officer has held on the basis of the order passed in Revenue Case No. 1/59(1) of 1960-61 and other evidence led by the non-applicants that petitioner Sitaram was not a tenant of the land and since no appeal was filed by him against the order, it had become conclusive and the applicants had failed to prove that they had taken the land on lease from Dhundiraj, father of the non-applicants. As to the notices issued under section 38 of the New Tenancy Act and the proceedings taken under section 36, it was found that this was done by the non-applicants as a matter of abundant caution. As to the second contention, it has been held that section 120 was attracted since the petitioners were held to be unauthorisedly occupying the land and none of the provisions, except section 120 of the New Tenancy Act provide for eviction of such persons. The finding on the last question was in the negative and the applications made on 7-4-1961 were held to be not barred by time in view of the fact that Revenue Case No. 1/59 (1) of 1960-61 was decided on 10-1-1961.

2. The first contention raised by Shri C.P. Kalele for the applicants Sitaram and Bhagwan was that section 120 of the New Tenancy Act under which summary eviction of the applicants was ordered by the Sub-Divisional Officer could not be invoked inasmuch as the applicants were not occupying the land unauthorisedly and no question of any invalid transfer or its management was involved and consequently, clauses (a) and (b) of section 120 were not attracted.According to the learned counsel, clause (c) of section 120 was also inapplicable to the instant proceedings as it refers to the wrongful occupation "under the said provisions". Shri Kalele argued that the words "under the said provisions" refer to clauses (a) and (b) of section 120. This argument is obviously based on a total misconception of the provisions of section 120. The words used in clause (c), viz. "under the said provisions" have reference to the provisions of the Act as the last clause "the said provisions do not provide for the eviction of such persons" makes it clear beyond doubt. The point is also concluded by the decision of the Tribunal in Ramsing v. Durgabai1 in which it was pointed out that clause (c) of section 120 was an independent provision. Shri Kalele submitted that the interpretation put by the Tribunal on the clause was not reasonable, but the arguments advanced by him do not persuade me to take a different view. The view taken by the Tribunal in the case referred to above appears to be well founded since the High Court has also held in Special Civil Application No. 278 of 1956, decided on 10-4-1956, that in regard to a trespasser, section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (which corresponds to section 120 of the New Tenancy Act) is the only provision which could be invoked. It was further observed by the High Court in that case "all that section 84(c) requires is a finding by the Collector that the person sought to be summarily evicted is not entitled to the use and occupation of the land under any of the provisions of the Act and none of the provisions of the Act provide for his eviction." Another argument advanced by Shri Kalele may be disposed of here. It was contended that the petitioners had claimed to be tenants of the land and this was a question within the exclusive jurisdiction of the Tahsildar under section 100(2) of the New Tenancy Act and, therefore, the Sub-Divisional Officer should have referred the question for the decision of the Tahsildar. As Shri Y.V. Jakatdar for the non-applicants has rightly pointed out, section 120(c) invests the Collector with exclusive jurisdiction in regard to summary eviction of a person who is unauthorisedly occupying or wrongfully in possession of any land to the use and occupation of which he is not entitled under any of the provisions of the New Tenancy Act, after such enquiry "as he deems fit". The expression put in inverted commas by me implies that it would be for the Collector to decide on the merits of the case as to whether a case for eviction has been made out or not. The matter, therefore, lies in the exclusive jurisdiction of the Collector and it was, therefore, not at all necessary for him to refer the question to the Tahsildar. It is pertinent to note that under section 120, the Collector has to apply his own independent mind to the question. Ramchandra v. Rama2.

3. Shri Kalele also contended that the applications were barred by time and relied on a note in Shri J.S. Choudhary's commentary of the New Tenancy Act. The note under section 120 is rather cryptic and does not quote any authority for the view propounded by the learned author. It runs as follows:

"The limitation for taking action will be six months from the date on which cause of action arise (sic)."

In a case under the corresponding section, viz. 84, the Tribunal has set aside the order of the Collector on the ground that the application made by the peti-tioner was barred by limitation as it was beyond six months from the date of dispossession and they relied on section 3 of the Limitation Act for the period of six months. The order of the Tribunal was set aside by the High Court which held that where a person is in unauthorised occupation or in wrongful possession of the land and has to be evicted by the Collector, no period is provided for the person interested in moving the Collector to make an order. Limitation cannot be applied by analogy, Ghanshyamprasad v. Gendasing and others.1 In Krishna Mahar v. Hasan Miya2 also, it was pointed out by the High Court that there is no period of limitation prescribed either by the Tenancy Act or by any other statute to enable the Collector to exercise his jurisdiction under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948. The Nagpur Bench of the Tribunal has also dealt with this point in Chandrabhan v. Maroti3 and come to the conclusion that section 120 of the New Tenancy Act does not prescribe any limitation for an application under the provision. There is, therefore, no substance in the argument advanced by Shri Kalele.

4. Lastly, it was argued by Shri Kalele that applicant Bhagwan was not a party to the proceedings started by Sitaram for correction of crop statements and, therefore, the Sub-Divisional Officer was in error in drawing the conclusion from the order passed by the Naib-Tahsildar in that case that Bhagwan was a trespasser. It must be noted that the Sub-Divisional Officer has also taken into consideration the oral evidence of the non-applicants in coming to the conclusion that field survey No. 4 was never let out to Bhagwan and this latter has failed to discharge the burden which lay on him to establish his plea affirmatively. As a matter of fact, the defence of both the applicants, Sitaram and Bhagwan, was common throughout and it was never the case of Bhagwan that he was independently cultivating the field in question as a lessee. The relevant crop statement shows that the field was in the cultivation of the tenure-holders themselves. In the circumstances, I find no reason to disturb the conclusion arrived by the Sub-Divisional Officer on the basis of the material placed before him during the enquiry. As a result, both the applications for revision are rejected.

Application rejected.