D.A. DESAI, P.D. DESAI

(1) * * * *

(2) Before we proceed to examine various contentions canvassed at the hearing of this petition we should briefly refer to the relevant provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (Act LXVII of 1948) as amended from time to time. The Bombay Tenancy and Agricultural Lands Act 1948 was brought into force on 28th December 1948 A very sweeping amendment was made in the by the Bombay Tenancy and Agricultural Lands (Amendment) Act 1956 (Act XIIL of 1956) which amongst others introduced secs. 32 to 32R. Originally unamended sec. 32 gave a right to a protected tenant to purchase from the landlord the land held by him as a protected tenant. It gave option to purchase land of which he was a protected tenant. Response to this provision was found to be inadequate and therefore a sweeping change was made by which the tiller of the land was sought to be made the owner thereof. Relevant provision of sec. 32 as amended in 1956 reads as under:-

32 (1) On the first day of April 1957 (hereinafter referred to as the tillers day) every tenant shall subject to the other provisions of this section and the provisions of the next succeding sections be deemed to have purchased from his landlord free of all encumbrances subsisting thereon the said day the land held by him as tenant if

This amendment introduced a further measure of agrarian reform. The main object of the amendment was to bring about the distribution of ownership and control of the agricultural lands so as to subserve the common good. This object was sought to be achieved by fixing ceiling area of the land which could be held by a tenant and to prescribe what was the economic holding. It sought to equitably distribute the lands between landlord and tenants and except in those cases where the landlord wanted the land for cultivating the same personally for which due provision was made in the transferred by way of compulsory purchase all other lands to tenant in possession of the same with effect from April 1 1957 which was called the tillers day. A provision was also made for disposal of balance of land after purchase by the tenant and the basic idea underlying the provisions of the Amendment Act was to prevent concentration of agricultural land in the hands of the landlords to the common detriment. The tiller so cultivating was brought into direct contact with the State eliminating thereby the landlords who were in position of intermediaries The Amended Act thus affected the relationship between the landlord and tenant provided for the transfer and alienation of agricultural land etc. (Vide Shri Ram Ram Narain v. State of Bombay A.I.R. 1959 S.C. 459).

(3) The scheme of Part II of Chapter III provides for fixation of price and instalments to be paid by tenant becoming owner of the land by operation of sec. 32 and consequences of his failure to pay the same and disposal of land in respect of which purchase became ineffective. In order to carry out the scheme contained in Part II of Chapter Ill provision was made in Chapter VI for constitution of Agricultural Lands Tribunal. Sec. 67 confers power on the State Government to constitute Agricultural Lands Tribunal and sec. 68 sets out the duties of the Tribunal. Sec. 68 reads as under:-

68 It shall be duty of the Tribunal

(a) to determine the value of the site of a dwelling house under sec 17; (b) to determine the purchase price of land under section 32G 63 or 64; (e) to decide any dispute under sec. 32 to 32R (both inclusive); (d) to perform such other functions in carrying out the provision of this Act as

may be prescribed or as may be directed by the State Government. Sec. 70 provides duties and functions to be performed by the Mamlatdar and the only relevant clause necessary for the purpose of this petition is clause (b) which reads as under:-

70 For the purpose of this Act the following shall be the duties and functions to be performed by the Mamlatdar

(a) xx xx xx (b) to decide whether a person is a tenant or a protected tenant or a permanent tenant.

(4) A bare perusal of the aforementioned relevant provisions of the Tenancy Act would show that on the tillers day the tenant subject to the conditions set out in sec. 32 and next following sections would become the owner of the land of which he is a tenant free of all encumbrances subsisting on the land. The transfer of title would be brought about by operation of law and not by act intervivos The effect of sec. 32 was fully examined in Shri Ram Ram Narains case (supra) in which Bhagwati J. speaking for the Court observed as under :-

The title of the landlord to the land passes immediately to the tenant on the tillers day and there is a completed purchase or sale thereof as between the landlord and the tenant. The tenant is no doubt given a locus penitentias and an option of declaring whether he is or is not willing to purchase the land held by him as a tenant. If he fails to appear or makes a statement that he is not willing to purchase the land the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective. It is only by such a declaration by the Tribunal that the purchase becomes ineffective. If no such declaration is made by the Tribunal the purchase would stand as statutorily effected on the tillers day and will continue to be operative the only obligation on the tenant then being the payment of price in the mode determined by the Tribunal. If the tenant commits default in the payment of such price either in lump or by instalments as determined by the Tribunal sec. 384 declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the tillers day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tillers day or the alternative period prescribed in that behalf. This title is defeasible only only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasible only in either of those cases and it cannot therefore be said that the title of landlord to the land is suspended for any period definite or indefinite.

Thus the legal position appears to be well settled that on the tillers day the tenant becomes the oWner of the land held by him as a tenant and the title is defeasible in the event of the purchase becoming ineffective on the failure of the tenant to pay the purchase price either in lump or by instalments as determined by the TribunalBut even in that event the landlord does not regain the title but the land in respect of which purchase becomes ineffective would be at the disposal of the Collector. Therefore it is indisputable that on 1-4-1957 a tenant who was on the land becomes owner thereof and the landlord tenant relationship comes to an end. No doubt the provision contained in sec. 32P might indicate that the landlord regains title on the purchase becoming ineffective but on a true interpretation of sec. 32P it is crystal clear that the land in respect of which the purchase becomes ineffective will be at the disposal of the Collector to be disposed of by the Collector in the manner provided therein which gives an opportunity to the landlord to obtain possession subject to the provisions of sec. 15. However it is indisputable that by operation of Saw and not by the inter vivos the tenant becomes the deemed purchaser of the land held by him as a tenant on 1-4-1957. Therefore any person claiming to be a tenant on 1-4-1957 and prior thereto would cease to be the tenant as he would become the owner of the land. It would follow as a necessary corollary that when any one contends after 1-4-1957 that he is a tenant of the land and that the tenancy commenced prior to 1st April 1957; a question would always arise whether by operation of sec. 32 on 1-4-1957 he had become the owner of the land and therefore whether he could contend that after 1-4-1957 he continued to be the tenant of the land and could claim any right as tenant after 1 This question more often arises because even after 1-4-1957 a tenant whose tenancy commenced prior to 1-4-1952 would contend that he is a tenant and the authority having jurisdiction to decide the question of tenancy would be faced with a problem:- whether any relief could be given to him on the footing that he continues to be a tenant even after 1-4-97

(5) The provisions contained in sec. 70 read with secs. 85 and 85-A of the Tenancy Act have the effect of taking away the jurisdiction of the Civil Court to decide the question of tenancy and constitute Mamlatdar the exclusive forum to decide whether a person is a tenant or a protected tenant or a permanent tenant. Sec. 70(b) provides that for the purpose of the it shall be the duty and function of the Mamlatdar to decide whether a person is a tenant or a protected tenant or a permanent tenant. Sec. 85 provides that no Civil Court shall have jurisdiction to settle decide or deal with any question which is by or under the required to be settled decided or dealt with by the Mamlatdar or Tribunal a Manager the Collectors or the Gujarat Revenue Tribunal in appeal or revision or the State Government in exercise of the power or control and no order made by the aforementioned authorities under the could be questioned in Civil or Criminal Court. Sec. 85-A provides that if any suit instituted in any Civil Court involves any issues which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issues under the the Civil Court shall stay the suit and refer such issues to the competent authority for determination and comptent authority on a reference being made by the Civil Court shall deal with and decide such issues in accordance with the provisions of the and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. A combined reading of secs. 70 85 and 85-A would show that whenever a question arises before the Civil Court whether a particular person is a tenant of land as defined in the Tenancy Act the jurisdiction to decide the same will exclusively vest in the Mamlatdar and the Civil Court will have no jurisdiction to decide the same. Now it more often happens that even after the tillers day i.e. after 1-4-57 there may be instituted a proceeding in the Civil Court whereinsuch a question might arise. To illustrate an owner of land may file a suit either for possession or injunction contending that the person in possession is a trespasser or is threatening to disturb the possession of the owner of the land. The defendant in such a suit would appear and contend that he is a tenant. An issue would directly arise whether the defendant is a tenant of the land. It may also happen that the tenant in possession of land may on an apprehension that the landlord may disturb his possession file a suit for injunction and the landlord as defendant may contend that the plaintiff is not a tenant of the land. Again an issue will directly arise whether the person claiming to be the tenant is the tenant of the land. But in every such case if the person claiming to be a tenant of the land is to contend that he is on the land since prior to 1-4-1957 and continues to be in possession of the land till the date of the suit mandatory provision contained in sec. 32 will immediately come into play and if the person contending to be a tenant on his own pleading would have become a deemed purchaser. the issue then would be whether such a person was a tenant because he could not be a tenant or claim to be a tenant after 14 If such a question were to arise before the Civil Court the issue would be whether the person claiming to be a tenant was a tenant of the land; and the next following question would be whether the Civil Court would have jurisdiction to decide the question of past tenancy because jurisdiction of the Civil Court is barred in respect of the tenancy as subsisting on the date of the suit and not past tenancy in view of the language employed in sec. 70(b). If the jurisdiction of the Civil Court was taken away in respect of the present tenancy and not of the past tenancy the matter is quite simple and obvious answer would be that the Civil Court would have jurisdiction to decide the question of past tenancy. In fact there are number of decisions on this point and the matter hardly requires any detailed examination. Earliest decision to which our attention was drawn is the decision of our learned brother Divan J. in Special Civil Application No. 29 of 1963 decided on 26th September 1963. (Patel Chhilabhai Girdharbhai v. Mohan Bechar and Anr). The person claiming to be a tenant presented an application on 24th July 1958 under sec. 29 read with sec. 31 of the Tenancy Act for restoration of possession contending that he was forcibly dispossessed. It was contended that assuming that the applicant was the tenant prior to 1st April 1957 he had become the deemed purchaser and he cannot ask any relief on the footing that he is a tenant under sec. 29 read with sec. 31 and the Mamlatdar will have no jurisdiction to entertain an application under sec. 29. This contention was accepted observing that on the tenants own plea he should be deemed to have purchased the land on the tillers day and therefore his application under sec. 29 on July 24 1958 on the footing that he was a tenant was not maintainable at all and the application was rejected. Same conclusion was reached by Vakil J. in Special Civil Application No. 966 of 1960 decided on 14th August 1963 (Tulsidas Madhvalal v. Baldevji Bahadurji.) In fact the position is concluded by a recent decision of the Supreme Court in Mussamia Imam Haider Bax Rasvi v. Rabari Govindbhai Ratnabhai and others 10 G.L.R. 421. Before we set out the ratio of the judgment a few facts may be stated. In that case a suit was brought by the plaintiff landlord alleging that the lease 8 to the defendant was void and the plaintiff was entitled to a decree for possession of land from the defendants and for damage and mesne profits etc. The defendants inter alia contended that the civil Court had no jurisdiction to bear the suit because the lease in favour of the defendants was valid and they had become statutory owners of the land in question on the coming into force of the Amending Act XIII of 1956 and the Civil Court had no jurisdiction to try the suit. The trial Court held that the Civil Court had jurisdiction to hear the suit and the provisions of the did not apply to the suit 1and and the defendants were trespassers. Accordingly the trial Court granted a decree in favour of the plaintiff for recovery of possession of the lands from the defendants and for damages etc. Defendants Nos. 1 to 3 preferred an appeal to the High Court of Gujarat. The High Court held; (1) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit (2) that the plaintiff had failed to establish that the lease created was vitiated by fraud and (3) that the civil Court had no jurisdiction to deal with the question as to whether the defendants were not tenants on the date of the suit and the question could only be decided by the Revenue Authorities. The High Court directed that under sec. 85A of the Tenancy Act the following issue be referred to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision or if there are appeals from the decision the final decision to the High Court as soon as possible. The issue was as follows:-

Do the defendants prove that they are tenants of the lands in suit

It is against this decision of the High Court that an appeal was preferred to the Supreme Court and it was contended before the Supreme Court that the issue that arose in the suit was exclusively triable by the Revenue Court under sec. 70(b) of the and jurisdiction of the Civil Court was barred. Repelling this contention it was observed as under:-

It was argued that the question of ownership was not the primary issue before the High Court and the main question was whether the defendants were or were not the tenants of the suit lands on the material date namely July 28 1 or on May 11 1958 and such a question lay within the scope of the jurisdiction of the Revenue Authorities. In other words it was argued that the determination of the question whether the lease was created which subsisted after August 1 1958 or which subsisted also on May 11 1958 was not a matter within the scope of the jurisdiction of the High Court. We are unable to accept the argument put forward by Mr. Hathi as correct. Sec. 70(b) of the imposes a duty on the Mamlatdar to decide whether a person is a tenant but the sub-section does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote. The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the tillers day or on the date of the release of the management by the Court of Wards. In either case the question for decision will be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past. The question whether the defendants were tenants on July 28 1956 or on May 11 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership in other words the plea of tenancy on the two past dates was a subsidiary plea and the main plea was or statutory ownership and the jurisdiction the civil Court cannot therefore be held to be barred in this case by virtue of the provisions of sec. 70 of the read with the provisions of sec. 85 of the x x x We are accordingly of the opinion that sec. 85 read with sec. 70 of the does not bar the jurisdiction of the civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act. x x x x In our opinion there is nothing in the language or context of sec. 70 or sec. 85 of the to suggest that the jurisdiction of the civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates. At a later stage it was observed that there was no independent plea of tenancy set up by the defendants as subsisting on the date of the suit and there was no issue which survived for being referred to the decision of the Mamlatdar under sec. 85A of the. Accordingly the reference made by the High Court to the Mamlatdar was held to be incompetent.

(6) The decision in Mussamfas case (supra) turns upon the interpretation of sec. 70(b) read with secs. 85 and 85A. The question in terms examined was whether the jurisdiction of the civil Court was barred In view of the provisions contained in sec. 70(b) read with secs. 85 and 85A of the Tenancy Act.

(7) Sec. 85 bars jurisdiction of the Civil Court even in respect of an issue which may have to be decided or dealt with by the Tribunal. Expression Tribunal is defined in sec. 2(18) to mean the Agricultural Lands Tribunal constituted under sec. 67. Sec. 68 which we have set out here inbefore confers exclusive jurisdiction on the Tribunal amongst others (b) to determine the purchase price of land under sec. 32G 63 or 64; (c) to decide any dispute under secs. 32 to 32R (both inclusive). Now sec. 32 provides that on the first day of April 1957 every tenant shall subject to the provisions of sec. 32 and the provisions of next succeeding sections be deemed to have purchased from his landlord free of all encumbrances subsisting thereon the said day the land held by him as tenant. A dispute may arise under sec. 32 whether on 14-1957 a particular person claiming to be a tenant was tenant of the land. Now if this aspect is required to be examined only in the context of sec. 70(b) in a proceeding before the Civil Court the Civil Court will have jurisdiction to examine the same. But the question may arise in the context of sec. 32 read with sec. 68. It is that person who will become the deemed purchaser of the land who was the tenant of the land in question on 1-4-1957. Substantially a question may arise whether the person who claims to have become the deemed purchaser of the land was in fact a tenant of the land on 1-4-57. Such a dispute would be a dispute under sec. 32(1) Sec. 68 constitutes the Tribunal to be the exclusive forum for deciding the question arising under sec. 32(1) and if that is the duty of the Tribunal it would be a question to be decided settled or dealt with by the Tribunal and to that extent the jurisdiction of the Civil Court will be barred. A tenant may claim to be a tenant on any date subsequent to 1-4-1957 and further claim that the tenancy commenced prior to 1-4-57. If such a contention were to b:- put forth it would have two limbs:- firstly whether he was a tenant on 1-4-57 for the purpose of becoming a deemed purchaser and that aspect can be controverted by a person claiming to be the landlord; and secondly an issue would arise between a person claiming to be the tenant and the person claiming to be the landlord in respect of the land to which the Tenancy Act applies whether that person was tenant on 1-4-57 and it is such dispute which is envisaged by sec. 68(c) in respect of which the Tribunal will have exclusive jurisdiction and consequently the jurisdiction of the Civil Court would be barred. The question was never raised in Mussamias case (supra) whether the dispute that falls squarely within the four corners of sec. 68(c) to be settled decided or dealt with by the Tribunal would be the one in respect of which the Civil Court would have jurisdiction or not. A dispute may appear to be of the same type but may be raised in a different context to be decided by a different competent authority under the Tenancy Act. In view of the language of sec. 70(b) which refers to the present tenancy as on the date of the dispute question of past tenancy was not within the exclusive jurisdiction of the Mamlatdar and consequently the jurisdiction of the Civil Court would not be barred (vide Mussamias case (supra)). But same question in a different context in a different dispute may arise between the person claiming to be the landlord and the person claiming to be the tenant as on 1-4-1957 and such a dispute in order to attract sec. 32 will have to be decided and in respect of which the Tribunal is constituted the exclusive forum under sec. 68(c) and jurisdiction of the Civil Court would be barred. Such was not the case before the Supreme Court in Mussamias case. Therefore merely because the dispute is as to past tenancy the Civil Court cannot straightway proceed to assume jurisdiction to decide it. Such a dispute may arise in different contexts. It may arise in the context of sec. 70(b) read with sec. 32 depending upon the pleadings of the parties and the background in which the dispute arises. If the dispute arises in a proceeding in the Civil Court and in the facts and circumstances of the case it arises in the context of sec. 68(c) read with sec. 32 obviously it being a dispute which is required to be decided settled or dealt with by the Tribunal under sec. 68(c) jurisdiction of the Civil Court because of under secs. 85 and 85A would be barred and the Civil Court will have to make a reference to the Tribunal. Every case will have therefore to be examined looking to the contentions raised by the parties. In order to decide whether the Civil Court has jurisdiction to decide the dispute about past tenancy or not a question will have to be posed whether the jurisdiction of the Civil Court is barred under sec. 70(b) read with secs. 85 and 85A or sec. 68 read with secs. 85 and 85A. No hard and fast rule can be laid down in this behalf and. every case will have to be decided in the background of its own facts. Therefore first ground of attack that the Civil Court would have no jurisdiction to make a reference under sec. 85A of the Tenancy Act in respect of a dispute involving past tenancy commencing before 1-4-1957 is rather too broadly stated and cannot be accepted. The answer would be that the Court before which such a dispute is raised will have to find out whether the dispute is one which would arise under sec. 32 and then reference will to be made to the Agricultural Lands Tribunal. Such a dispute would not necessarily arise under sec. 70(b) only and yet if it does arise Civil Court can proceed to decide it. Therefore as a broad proposition it cannot be accepted that when there is a dispute involving past tenancy a reference to Revenue Authorities would be incompetent and civil Court would have Jurisdiction to decide it. In each case the civil Court will have to decide whether the reference has or has not to be made keeping in view the dispute and the context in which it arises and the reference would have to be made if the dispute falls within the four corners of sec. 68(c) read with secs. 85 and 85A of the Tenancy Act.

(8) It was incidentally urged that the Tribunal will have no jurisdiction to decide the disputed question of tenancy arising under sec. 32 and that the Tribunal could only proceed to decide whether a person claiming to be a tenant on 1-4-57 has become owner thereof or not only if there is admitted relationship of landlord and tenant between the parties. There is no warrant for circumscribing the jurisdiction of the Tribunal in this manner and in fact it would render the provisions contained in Chapter IV wholly neugatory. In fact it is the duty of the Tribunal to decide any dispute that may arise under secs. 32 to 32R (both inclusive) and as pointed out earlier a dispute under sec. 32(1) can as well be whether a person claiming to be a tenant on 1-4-57 was a tenant of the suit land so that by operation of law he would become owner thereof. When we turn to the facts of this case we would point out that that was exactly the dispute between the parties in this proceeding and that dispute squarely fell within the jurisdiction of the Tribunal set up under sec. 67 and as the dispute involved a question which was within the exclusive jurisdiction of the Tribunal the jurisdiction of the civil Court to decide the dispute or the issues would be barred in view of the provisions contained in sec. 85 and the relevant issue will have to be referred to the Tribunal in view of the provisions contained in sec. 85A. Reference in this connection was made to a decision in Govindram Salamatrai Bachani v. Dharampal Amarnath Puri 53 Bom. L. R. 386. In that case the plaintiff filed a suit in the High Court for recovering possession of a piece of land on the allegation that the defendant was a licensee and the licence had legally terminated. The defendants contended that they were not licensees but the tenants and were therefore protected under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 It was contended before the High Court that the High Court had no jurisdiction to decide a question whether the defendants were licensees or tenants in view of sec. 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 Repelling this contention it was observed that the proper forum for the determination of the question whether the relationship between the plaintiff and the defendant is as between landlord and tenant or as between licensor and licensee or as between owner and trespasser is the High Court which initially has got the jurisdiction to entertain the suit for ejectment which has been properly framed on the basis of relationship as between licensor and licensee or owner and trespasser. Whether a person is a licensee or a tenant is not a question that has anything to do with the Rent Act or any of its provisions. It is a question which is collateral and which has got to be decided before it can be said that the has any application at all because the application of the depends upon the defendant being a tenant. If he is not a tenant the has no application and therefore before the Court can apply any provisions of the or decide any question arising out of the it has got to determine whether the defendant is a tenant who can claim the protection of the. It is a jurisdictional question which has got to be determined in order to decide whether the particular Court in which the suit has been filed has or has not jurisdiction to try the suit and sec. 28 does not deal with jurisdictional questions which have got to be decided in limine before matters arising under the can be considered by the Court. We fail to see how the ratio of this decision can help in support of the submission canvassed by the petitioners that the Tribunal will have jurisdiction to decide the dispute arising under sec. 32(1) only if there is an admitted relationship of landlord and tenant on 1-4-57. It is well settled that as soon as a dispute or contention is raised in a suit in the civil Court which is required to be decided dealt with or settled by competent authority under the Tenancy Act by mere raising of the dispute the jurisdiction of the civil Court to decide deal with or settle that dispute is ousted. If the relationship is admitted statutory ownership is acquired by mere operation of law and one can hardly envisage any dispute under sec. 32(1). Therefore the Tribunal set up under sec. 67 will have jurisdiction to decide the jurisdictional fact whether the person claiming to be tenant was the tenant on 1-4-57 or not and on the decision of that question further jurisdiction of the Tribunal to declare that he had become statutory owner can be exercised.

(9) It was however contended that approaching the matter from the angle from which we are doing we are questioning the decision of the Supreme Court in Mussamias case and that it would not be open to the High Court to question a decision of the Supreme Court or to distinguish it on the ground that certain provisions of the were not brought to the notice of the Supreme Court. We are doing nothing of its kind. We accept the ratio of the Supreme Court in Mussamias case as binding nor are we suggesting for a moment that the Supreme Court would not have reached the very conclusion if some other provisions of the Tenancy Act were brought to its notice. Mussamias case is an authority for the proposition that sec. 85 read with sec. 70 of the does not bar the jurisdiction of the civil Court to examine and decide the question whether the tenant had acquired a title of statutory ownership to the disputed lands under the Amending Act and that there is nothing in the language or the context of sec. 70 or sec. 85 of the to suggest that the jurisdiction of the civil Court is expressly or by necessary implication barred with regard to the question whether the tenant has become statutory owner of the land and to decide in that connection whether the tenant had been in the past tenant in relation to the land on a particular past date. It is also an authority for the proposition that jurisdiction of the civil Court is not barred for considering the question whether the provisions of the are applicable to the disputed land during a particular period. That ratio is binding on us. Neither are we distinguishing the decision in Mussamias case nor are we for a moment suggesting that such would not have been the decision of the Supreme Court if other provisions of the Tenancy Act were pointed out to it. What we are pointing out is that when a dispute arises as to the status of a tenant on a particular date i.e. on 1-4-57 or in relation to any date on which the person on being a tenant of the land would become the deemed purchaser thereof and the question arises not in the context of sec. 70 read with secs. 85 and 85A as in Mussamfas case but in the context of sec. 32(1) read with sec. 68 a special forum namely the Tribunal is set up in which exclusive jurisdiction is vested in view of the provisions contained in sec. 68 and accordingly in the context of sec. 68 read with secs. 85 and 85A of the the jurisdiction of the civil Court to decide the dispute or issue would be barred.

(10) Our attention in this connection was invited to B. M. Lakhani v. Malkapur Municipality A.I.R. 1970 S.C. 1002. In that case it was found that a Bench of the Bombay High Court held that a suit does not lie for refund of tax illegally collected even after its attention was drawn to the decision of Supreme Court bearing directly on the point in Bharat Kala Bhandar v. Dhamangaon Municipality A.I.R. 1966 S.C. 249 observing that the relevant provisions of the were not brought to the notice of the Supreme Court. It is in this background that the Supreme Court observed that its earlier decision was binding on the High Court and the High Court could not ignore it because the High Court found that relevant provisions were not brought to the notice of the Surpeme Court. We are absolutely certain we are doing nothing of its kind.

(11) It was next contended that if the Civil Court had no jurisdiction to make a reference under sec. 85-A of the Tenancy Act in respect of a dispute involving past tenancy commencing prior to 1-4-57 and raised in a proceeding initiated after 1-4-57 it would be open to the Mamlatdar to return the reference holding that the reference is invalid and incompetent. This question is posed on the submission that at present we are hearing a petition under Article 227 of the Constitution against a decision of the Gujarat Revenue TribunalThe Gujarat Revenue Tribunal had entertained a revision application against the decision of the Deputy Collector who heard the appeal against the decision of the Mamlatdar who decided reference on merits. The submission is that this Court should reject the reference as incompetent. When we turn to the facts of this case we would point out that broadly interpreting the dispute covered by the reference the reference made by the court and the substantive application made by the respondent No. 2 to the Mamlatdar would be quite competent and the Mamlatdar would have jurisdiction to dispose of the same Therefore the question of rejecting the reference as invalid and incompetent would hardly arise. But the question was argued in abstract on the basis that it would be open to the Mamlatdar to reject the reference made by a Civil Court under sec. 85-A as invalid and incompetent. Whenever a reference is made by a civil Court under sec. 85-A to the comptent authority under the Tenancy Act the competent authority will be an inferior tribunal to the Civil Court and it would not be open to such an inferior tribunal to return the reference on the ground that it is invalid and incompetent. It is a duty of such inferior Tribunal to decide the reference leaving it to the Civil Court and to the hierarchy of Courts under the Code of Civil Procedure where the question can be agitated whether a reference made by a Civil Court is incompetent or invalid. To illustrate if the Civil Court were to make a reference in respect of which contention is raised that it is incompetent and invalid an appeal can be preferred against the decision of the Civil Court making the reference. Even if no appeal is preferred at the stage of the reference being made same contention can be canvassed in an appeal against the decree passed by the Civil Court. But the Court of limited jurisdiction acquiring jurisdiction on reference made by the Civil Court cannot proceed to reject the reference observing that the reference itself is incompetent. To uphold such a contruction would lead to conflict of jurisdiction. Again to illustrate if a reference is made by a Civil Court and if the Mamlatdar or any competent authority under the Tenancy Act were to return the reference without deciding it on merits with a cryptic observation that the reference is incompetent there would be conflict of jurisdiction and it is no answer to the problem that the same must be got resolved by approaching the apex namely High Court through the hierarchy of Courts namely by way of an appeal against the decision of the Mamlatdar and revision application to the Revenue Tribunal and petition under Article 227 of the Constitution of India or against the order making reference by the Civil Court by way of an appeal to the District Court and then either by Civil Revision Application or Second Appeal whichever is competent to the High Court. Statutory obligation is cast on the Civil Court to make a reference whenever an issue arises before it which is required to be settled decided or dealt with by a competent authority set up under the Tenancy Act. It is in discharge of this statutory obligation that a reference is made. A corresponding statutory duty is cast upon the competent authority under the Tenancy Act to settle decide or deal with the disputes contained in the reference made by the Civil Court in accordance with the provisions of the Tenancy Act and to direct its decision to the Civil Court and again a duty is cast upon the Civil Court to dispose of the suit in accordance with the procedure applicable under the. Now whenever a Civil Court in discharge of its statutory obligation makes a reference under sec. 85-A to the competent authority under the Tenancy Act there is no provision in the Tenancy Act which enables such a competent authority to return the reference on the ground that the reference made by the Civil Court was incompetent or invalid. If the competent authority enjoys such a jurisdiction it would in fact constitute the competent authority appellate forum over the decision of the Civil Court. Such could not be the intention of the legislature. The tribunal having a limited jurisdiction it acquires jurisdiction to deal with the dispute only upon a reference being made by the Civil Court. It would have no jurisdiction to question the jurisdictional facts named competence of the reference. As pointed out by the Supreme Court in Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi A.I.R. 1959 S.C. 492 there are two classes of cases dealing with the power of the Tribunal:- (1) where the legislature entrusts a tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists and (2) where the legislature confers jurisdiction on such tribunals to proceed in a case where a certain state of facts exist or is shown to exist. Looking to the scheme of secs. 8 and 85 which achieve dual purpose of taking away the jurisdiction of the Civil Court to settle decide or deal with certain dispute and making it obligatory upon the Civil Court to make a reference to a competent authosrity under the Tenancy Act competent authority under the Tenancy Act would fall under the second class of cases herein before mentioned and therefore it will have to take certain state of facts as existing and to proceed to decide the dispute referred to it. Preliminary fact which it must take as existing is a fact of reference and therefore it cannot question the reference. If it cannot question the reference it cannot return the reference on the ground that it is incompetent and invalid. That would. be conferring on a tribunal of a limited jurisdiction such wide jurisdiction as to permit it to decide those jurisdictional fact which it does not seem to possess. It can decide the fact in issue namely whether a particular person is or is not a tenant or has not become a deemed purchaser but not the jurisdictional fact whether the reference made to it upon which it acquires jurisdiction is incompetent or invalid. The view that we are taking gets support from the decision of Vakil J. in Galabji Khodaji v. Moosamiya Imam 9 L.R. 1018. But our attention was further drawn to an unreported decision in Special Civil Application No. 1064 of 1970 decided on 23rd September 1970 by A. D. Desai J. In that (Harindra Singh Uppal v. Union of India) case when the matter was pending before the Civil Court sec. 18 of the Land Acquisition Act a contention was raised by a party to the reference that he was a tenant of the land which was acquired and requested the Court to make a reference under. the Tenancy Act to decide the status of tenancy claimed by the person. A. reference was made to the Mamlatdar Halol who held on the merits of the case that the petitioner before him was not a tenant of the land under acquisition. In an appeal preferred by the petitioner to the Assistant Collector the decision of the Mamlatdar was reversed and in revision application to the Gujarat Revenue Tribunal the decision of the Assistant Collector was set aside and decision of the Mamlatdar was.:- restored. The petitioner preferred Special Civil Application under Article 227 of the Constitution and that is how the matter came up before our learned brother A. D. Desai J. The issue referred in that case was whether the petitioner was a tenant on the date of the notification under sec. 4 of the Land Acquisition Act which was issued in the year 1963 and after referring to the decision of Mussamias case our learned brother was of the opinion that as the issue was of past tenancy in reference to the date on which the dispute arose the case would squarely fall within the ratio of Mussamias case and therefore the Civil Court had jurisdiction to decide that question. No question was raised whether the person claiming to be a tenant was the tenant on the tillers day and whether he had become the deemed purchaser thereof and what was the jurisdiction of the Tribunal to decide such a dispute. In fact our learned brother accepted the ratio in Galabjis case (supra) and observed that as the High Court was exercising the power under Article 227 of superintendence over all inferior Courts and Tribunal the High Court must hold that the reference made by the Civil Court was incompetent. There is nothing in this decision from which it can be said that the Mamlatdar will have jurisdiction to return the reference holding it to be incompetent and invalid. Our attention was also drawn to the decision in Special Civil Application No. .179 of 1967 decided on 20-1-1971 Patel Vithal Govindji v. Iswar Mehramdas by M. P. Thakkar J. who has in terms followed the decision of A. D. Desai J. There is a similar decision of M. P. Thakkar J. in Special Civil Applications Nos. 1434 to 1438 all of 1968 decided on 4th March 1971 (Natverlal Baldevdas v. J. R. Mankad and Ors.) and there is also a decision to the same effect in Special Civil Application No. 366 of 1963 decided on 1st February 1968 (Suleman Mohmad v. Musaji Asmalji). However for the reasons herein stated we are of the opinion that once a reference is made by a Civil Court under sec. 85-A to the Competent Authority the latter has no jurisdiction to return the reference holding that the reference is invalid and incompetent.

(12) It was next contended that the Mamlatdar would have no jurisdiction to entertain a substantive application in which declaration is sought by a person about his past tenancy commencing prior to 1-4-57 that he is a tenant. There were two independent limbs of this argument:- The first limb of the argument was that in view of Mussamias case the Mamlatdar will have no jurisdiction to entertain an application for a declaration of the status of a tenant in which applicant contends that he has been a tenant since prior to 1-4-57 in view of the language contained in sec. 70(b). To be precise if a person makes an application that he is a tenant further contending that his tenancy commenced prior to 1-4-57 and that application is filed after 1-4-57 in view of Mussamia case the Mamlatdar would have no jurisdiction to entertain such an application. On a strict interpratation of pleadings it would mean that the person making application contended that he had been a tenant prior to 1-4-57 and that his tenancy has continued uninterruptedly to a date subsequent to 1-4-57 and till making of the application and on the date of the making of the application he is a tenant and that he be declared to be a tenant. If such be the state of pleadings in view of the ratio in Mussamias case the Mamlatdar would have no jurisdiction to entertain such an application especially exercising jurisdiction under sec. 70(b). We would point out at a later stage that a Mamlatdar has a complex phenomenon to perform under the Tenancy Act and he is a multi splendoured personality. He has to discharge his duties conferred upon him under sec. 70(b) of the Tenancy Act. He is also declared to be the Agricultural Lands Tribunal under sec. 67. He also presides over the court set up under the Mamlatdars Courts Act. Now one cannot be too rigid about the pleadings before the Mamlatdar functioning in a taluka town more so when the assistance of a lawyer is statutorily denied in view of the provisions contained in sec. 30-A of the Tenancy Act. But in order to appreciate the contention as raised we must confess that if a substantive application is made by a person to Mamlatdar functioning under sec. 70(b) claiming that on the date of the application he is a tenant which date is somewhere after 1-4-57 and further inter alia contends that he has been a tenant since a date prior to 1457 and continued to be so after 1-4-57 then in view of the fact that he would become deemed purchaser on 1-4-57 the Mamlatdar would have no jurisdiction to entertain such a substative application. It was in terms hold in Mussamias case that sec. 70(b) imposes a duty on the Mamlatdar to decide whether a person is a tenant but the section does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote.

(13) Second limb of the argument was that the Mamlatdar has no jurisdiction to grant a declaratory relief and that he can at best record a finding in a proceeding in which he has to decide granting of some relief for the purposes of the. Sec. 70(b) confers jurisdiction on the Mamlatdar to decide whether a person is a tenant or not for the purposes of the. What Mamlatdar does in exercising jurisdiction under sec. 70(b) is that he records a finding on relevant facts with reference to a relevant date whether the person claiming to be a tenant is or is not a tenant of the land in question. There is nothing like a formal declaration to be made by him and the Mamlatdar can certainly record a finding and that finding may amount to a declaration of the status of the person claiming to be a tenant or not. Reference was made to Ambalal Ranchhoddas v. Shamjibhai 10 197 In that case it was held that the revenue authority would only be giving decision or finding on the question or issue mentioned in sec. 70 or other relevant sections and therefore even though the Mamlatdar would be deciding the question whether the person is a tenant or not the decision would be a finding on the question left to the Mamlatdar by the Legislature within its exclusive jurisdiction and would not amount to any formal declaration which only the Civil Court could give. There cannot be any controversy about this proposition. It was however contended that such a finding can be given in a proceeding in which incidentally some other questions which must be decided for the purposes of Act must arise and incidental to the decision of that question .it is necessary to decide whether a person is or is not a tenant. It was contended that no declaration simpliciter can be given and there is no such jurisdiction in the Mamlatdar to grant such a declaration. It was also contended that the Civil Court alone has jurisdiction to grant a declaratory relief and that there is no provision in the Tenancy Act which confers jurisdiction on the Mamlatdar to grant a declaration. Now it cannot be disputed that a Mamlatdar entertaining an application under sec. 70(b) for recording a finding on a disputed question of tenancy ultimataly by his decision decides the issue arising before him whether the person is or is not a tenant. It would be a finding and it has to be for the purpose of the. But an application under sec. 70(b) would obviously be for the purpose of the. It must be for carrying out some purpose of the that the Mamlatdar would entertain such an application. Sec. 70 opens with expression for the purpose of this Act. Now if a reference is made by a Civil Court certainly the Mamlatdar has to decide the reference once he is seized of the matter and while deciding it he would be deciding the reference for the purpose of the. A reference whether a person claiming to be a tenant is or is not a tenant would be made by a Civil Court if that issue has to be resolved for the purpose of the the being the Tenancy Act. When the Mamlatdar is seized of the matter he would be deciding the reference for the purpose of the. It is not implicit in sec. 70 that some other purpose of the must be discernible in the proceeding in which the 0 Mamlatdar has to record that finding. If a person is a tenant within the meaning of the Tenancy Act he is entitled to certain protection and the protection which he enjoys is one under the and the decision therefore would be for the purpose of the. Such a finding may be styled as a declaration; but it cannot be said that the Mamlatdar has no.; jurisdiction to record a finding which will have the effect of a declaration of status of the person concerned for the purpose of Act. It is difficult to envisage a situation in which a person may apply for declaration of his status as tenant when consequent upon the declaration he has not got any relief under the. It would be attaching merits to a technicality if one were to say that such finding would amount to declaration and that the Mamlatdar has no jurisdiction to make such a declaration. We are fortified in our conclusion by a decision of the Supreme Court in Bai Achhuba v. Kalidas A.I.R. 1967 S.C. 651. The question that arose in that case was:- whether the Collector has power under sec. 84 to make a formal declaration that the transaction is void because it is in contravention of either sec. 63 or sec. 64 of the Tenancy Act. Now no such formal declaration is envisaged either by sec. 84 or by sec. 63 or by sec. 64. What the Collector has to do is to record a finding that the transaction being in contravention of sec. 63 and sec. 64 is invalid and the Collectors finding in that regard would tantamount to a declaration that the transaction is invalid and that would be sufficient. It was in terms observed that the finding of the Collector in that regard would tantamount to a declaration that the transfer is invalid. Mr. Oza however referred to Magiti Sasmal v. Pandab Bissoi and othera A.I.R. 1962 S.C. 547. That decision turns upon the construction of the provision contained in sec. 7(1) of the Orissa Tenants Protection Act 1948 The Supreme Court noticed a fact that there is no exclusion of the jurisdiction of the civil Court to decide a a question whether landlord tenant relationship subsists between the parties before protection envisaged by the could be claimed. On a construction of sec. 7(1) it was held that sec. 7(1) postulates the relationship of tenant and landlord between the parties and that postulate carves out the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant. Therefore the decision would not help us in deciding a question raised before us. Similarly the decision of a Division Bench of this High Court in Motibhai Gopalbhai v. Gujarat Revenue Tribunal 7 L. R. 693 would be of no assistance. In that case an application was made to the Mamlatdar for a declaration that transfer of land by way of partition made in favour of a minor was sham and bogus and that the transferor continued to be the owner of the said land and the right of the tenant to become the deemed purchaser of the said land on 1st April 1957 was not affected. It was attempted to be urged that such an application is maintainable under sec. 70(o) of the Tenancy Act and negativing this contention it was observed that the application to be maintainable under sec. 70(o) must hang on the peg of some other provision of the Tenancy Act and sec. 32F(1) would not apply because that section applies only where the landlord is a minor or a widow or a person subject to any mental or physical disability or a serving member of armed forces and where such landlord is a member of a joint family. But Mr. Oza heavily reiled upon a Full Bench decision of the Mysore High Court in Rachagouda v. Kamabai A.I.R. 1963 Mysore 21. The question referred to the Full Bench in that case was as under:-

Whether under the provisions of the Bombay Tenancy and Agricultural Lands Act 1945 the Mamlatdar can entertain and decide an application by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act

The majority answered the question in the negative. Now we must confess that this decision supports the contention canvassed by Mr. Oza. However we would like to refer to a decision of the Division Bench of the Bombay High Court in Mela Kabhai v. Motibhai Kahandas Patel 60 L.R. 1071 in which it has been in terms held that the Mamlatdar is competent to grant a declaration whether a person is or is not a tenant in exercise of the jurisdiction conferred upon him under sec. 70(b). We may also refer to a decision in Nivrutti Laxman v. Shivdayal Laxminarayan 61 957 in which following question was referred to the Full Bench:-

Whether under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 the Mamlatdar can entertain and decide an application filed by a landlord for a declaration that his opponent who claims to be his tenant is not a tenant under the said Act

The Full Bench answered the question to the effect that the Mamlatdar can entertain and decide an application for a declaration that the person is or is not a tenant. In reaching this conclusion the Full Bench after referring to the earlier decision of the Bombay High Court held that the Mamlatdar can decide a question whether the person is or is not a tenant even if it arises in a proceeding other than the proceedings under the Tenancy Act. If the Mamlatdar has jurisdiction to decide the question after it arises in a Civil Court he will also have jurisdiction to decide it before it arises in the Civil Court. The question it was observed will also have to be determined by reference to and in the light of the provisions of the as to who are and who are deemed to be tenants and as to how and in what circumstance a tenancy can be terminated. Such a determination will therefore be for the purposes of the. Then there is a pertinent observation which we would quote:-

The words for the purposes of this Act in our opinion mean for the purposes of deciding any question relating to a matter which is regulated or governed by the provisions of this Act. If therefore the question raised before the Mamlatdar relates to a matter which is to be decided by reference to the provisions of this Act its determination by the Mamlatdar will be for the purposes of the and it is immaterial whether the application raising the question is made by the landlord or by the tenant.

This decision of the Full Bench was rendered on 20th January 1959 that is prior to 1st May 1960 and therefore is binding on us and must be accepted in preference to Mysore decision. The contention therefore that Mamlatdar cannot grant a declaratory relief must be negatived.