Maruti Bala Raut v. Dashrath Babu Wathare & Ors.

8 _gg_ MARUTI BALA RAUT _v._ DASHRATH BABU WATHARE & ORS. _August_ 27, 1974 [P. JAGANMOHAN REDDY, M. H. BEG AND A. ALAGIRISWAMI, JJ.] _·Co11stitution_ _of_ _India,_ 1950, _Article_ _227-Powers_ _of_ _fligh_ _Court to_ _i11terfer!_ _on_ _the_ _C}Jltstions_ _of_ _fac1_ _or_ _to_ _reappreciate_ _evidence._ _Bombay_ _Te1zancy_ _and Agricultural_ _Larki-1_ _Act,_ 1948--S. _76--Poirers_ _of_ _Land_ _Rtven.ue Tribunal_ _Jo_ _interfere with the questions_ _of_ _fact in exercise_ _of_ _rei·isionttl_ _power3._ In the year 1948 Miraj State was merged in the then Bombay Province and from that date the Bombay Tenancy Act 1939 became applicable to the lands in qu~tion. The question arose whether the appellant was a tenant at the time the Bombay Tenancy Act 1939 was made applicable and would therefore be a protected tenant or not. There were two proceedings in respect of two different parts of the same land one between the appellant on the one hand and Yeshwa11.• and Jinnappa on the other hand and the other between the appellant oM tho one hand and Bhim Rao and Dasrath on the other hand raising the same issue whether the appe11ant was a tenant at the relevant time. In the proceedings by Bhim Rao and Dasrath, the Deputy Coffector held that the appellant was a tenant at the releva11_t time. In the procoeedings initiated by Yeshwant and Jin.appa the Mamlatdar also held the appellant to be a tenant. The Mamlatdar'9 order was, however, set aside by the Special Deputy Collector. Two Revision Applications were filed before the Maharashtra Revenue Tribunal; one by the appellant and the other by Bhim Rao and Dasrath. The Tribunal dismissed the application filed by Bhim Rao and Dasrath and allowed the application filett by the appellant and set aside the order of the Specil Deputy Callee.tor. Two Writ Petitions were filed in the High Court, under Article 227. The High c·ourt allowed both the petitions. HELD: (1) The powers of the ~1aharashtra Revenue Tribunal are to be found in section 76 of the .Act. The Tribunal clearly exceeded its power in reversing the order of the Special Deputy Collector. The Tribunal clearly acted in complete disregard of its powers and proceeded a<; though it were either dealing with the matter as a court of first instanct: or an appellate Court. [902 A-Bl (2) The High Court was, however, plainly in error in interfering with the .iudgment of the Tribunal which merely upheld the Deputy Collector':; order. The High Court has ignored the limitation within which it has to act ¥.:hile exercising its powers under Article 227 of the Constitution. It was not for ihe High Court to di!icuss the evidence and come to the conclusion as to whether the anpellant was or was not the tenant on 11-8-1948. That wa<> a matter for the Denuty Collector whose judgment has been upheld bv the Tribunal.· The High Court while exercising the powers under Article 227 was not entitled to discuss the evidence and come to its own conclusion, on the evidence as to who _was_ in possession of th'e land. The High Court has plainly over-stepped the limits of its power under Article 227. [903 E-904 A] CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1941 and 1942 of 1967. #### _f_ A B # c D E F G (Appeals by Special Leave from the Judgment & Order dated the 13th/14th July 1967 and 10th August, 1967 of the Bombay High H Court in S.C.A. No. 73 of 65) S. _T._ _Desai,_ _Ven/<atrao_ _Pawar, Gadgil_ and _Gopalakrishnan,_ for the appellant. 900 SUrREME COURT REPORTS (1975] 1 s.C.K. _N.D. Karkfzanis, V.N._ _Ganpule,_ _A .N. Karkfzanis_ and _P.C. Kapur,_ for the respondent. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-In the year 1932 one Shantappa Watharec father of respondents I and 2 in C.A. 1942, executed a document (we are using the word 'document' because the character of the document was the subject matter of subsequent litigation) in respect of the western I/3rd share of Survey No. 99 measuring 7 acres and 30 gunthas in the viJlage of Bamani in the State of Miraj in favour of Nabisha Pirajde of Miraj. In 1936 he executed a similar document in respect of middle I/3rd and in 1941 Dashrath and Bhima, belonging to another branch of the family, executed a similar document in respect of the eastern I /3rd portion of the land in favour of the said Nabisha Pirjade. On 11-8-1948 Miraj State merged in the then Bombay Province and from that date the Bombay Tenancy Act, 1939 became applicable to the lands in question. On 15-9-1948 the Bombay Agricultural Debtors Relief Act, 1947 became applicable to the areas of the former Miraj State and on 28-12-1948 the Bombay Tenancy and Agricultural Lands Act, 1948 came into force in the same area. In 1949 the two branches of Wathares started two separate sets of proceedings under the Bombay Agricultural Debtors Relief Act contending that the documents of 1932, 1936 and 1941 were mortgages and they were entitled to redeem them. They succeeded in their contention. To these proceedings the appellant Maruti Bala Raul was not a party. The appe1Jant obstructed their attempt to take possession on the ground that he was a tenant of these lands even before the Bombay Tenancy Act, 1939 became applicable to them and was thus a protected tenant. There is no dispute that if on 11-8-1948 t.he appellant had been a tenant of these lands he was entitled to succeed. As a result of the obstruction there were numerous proceedings between Yeshwant and Jinappa, sons of Shantappa Wathare, on the one hand and the appellant on the other, as also another set of proceedings between Bhimarao and Dashrath Wathare on the one hand and the appellant on the other, the appellant claiming that he was a tenant entitled to the benefits of Tenancy Act and the two sets of respondents contending that he was not. Jn the proceedings by Yeshwant and Jinappa the question whether the appellant was a tenant was referred to the Mamlatdar under s. 70-B of the Bombay Tenancy Act. There was a similar order in the proceedings between the appellant and Bhimarao and Dashrath. In the proceedings by Bhimarao and Dashrath the Prant Officer (Deputy Collector) held that the appellant was a tenant in possession on 11-8-1948. The Mamlatdar in the proceedings initiated by Yeshwant and Jinappa also came to a similar conclusion. Against the Mamlatdar's order Yeshwant and Jinappa filed an appeal before the Special Deputy Collector and succeeded. There were two Revision Applications to the Maharashtra Revenue Tribunal, one by the appellant who had failed before the Special Deputy ~ollector and the other by Bhimarao and Dashrath who had A B ## c D E F G H #### _f_ B ## c D E F G H M. B, RAUT _v._ D. B. WATHARE; _(Alagiriswami,_ _J.)_ 9() t failed before the Prant Officer. Both these applications were heard together and the Tribunal dismissed the application filed by Bhimarao and Dashrath but allowed the application filed by the appellant and set aside the order of the Special Deputy Collector holding that the appellant was a tenant on the land on 11-8-1948. There were two petitions under Article 227 of the Constitution against the order of the Revenue Tribunal by the two unsuccessful parties. They were heard together and allowed by a learned Single-Judge of the Bombay High Court. The learned Judge held that there was no justification for the ~ribunal _to_ interfere with the finding of fact recorded by the .Special Deputy Collector. He also allowed the petition filed by Bhimarao and Dashrath. These two appeals have been filed by Special Leave granted by this Court against the orders in the two petitions. At an earlier stage of the proceedings one question loomed larged before the courts below and that was whether a tenant who had been let into possession by a mortgagee in possession was entitled to continue in occupation under the Bombay Tenancy and Agricultural Lands Act. This controversy has now been set at rest by the decision of this Court in _Dahya Lal_ v. _Rasul Mohammed Abdul Rahim_ (1963 3 SCR I). The only question for decision therefore was whether the appellant was in posse5'ion on I 1-8-1948. Let us first deal with the order of the Maharashtra Revenue Tribunal. The Tribunal's powers are found in s. 76 of the Bombay Tenancy and Agricultural Lands Act which reads as follows : "76. (I) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only : (a) that the order _of_ the Collector was contrary to law; (b) that the Collector failed to determine some material issue _of_ law; or (c) that there was a substantial defect in following the pro cedure provided by this Act, which has resulted in the miscarriage of justice. (2) In deciding applications under this section the Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal." There is no dispute that in these two cases the Prant Officer (Deputy Collector) as well as the Special Deputy Collector is a Collector as defined in cl. (2E) of s. 2 of the Act. We have carefully gone through the order of the Maharashtra Revenue Tribunal and are of opinion that in so far as it reversed the order of the Special Deputy Collector 902 SUPREME COURT REPORTS [1975] 1 s.c.R. the Tribunal clearly exceeded its powers. The order of the Tribunal is a very clear and concise one and if it were an original order or an order passed in exercise of appellate powers there is no doubt it would be a proper order. The Tribunal clearly acted in complete disregard of its powers and proceeded as though it were either d,aling with the matter as a court of first instance or as an appellate court. It first set out the main points which arose for decision in the two cases before _it,_ then examined the evidence relied upon by the Prant Officer and the Mamlatdar and stated that it agreed with the view taken by both #### of them. If the Revision Petitions before the Tribunal were against the decision of the Prant Officer and the Mamlatdar there would have been no need to say anything more and the decision of the Tribunal would have been right. But the Tribunal had before it the order of the Prant Officer and the order of the Special Deputy Collector 011 appeal against the order of the Mamlatdar. Therefore, the Tribunal had to deal with the order of the Special Deputy Collector. After mentioning that the Special Deputy Collector had held that the appellant was not a tenant in possession under the Bombay Tenancy Act, 1939, it went on to state that the Special Deputy Collector relied mainly upon the decision of the Assistant Judge in the appeal under the Bombay Agricultural Debtors Relief Act proceedings to hold that the appellant was not a tenant. On the ground that the Civil Courts had no jurisdiction to decide questions of tenancy and therefore the Assistant Judge's decision was a nullity, it held that it was unnecessary to discuss the grounds for that decision on which the Special Deputy Collector's decision was based. The Tribunal then went on to discuss the evidence and held that it supports the case of the appellant that he was all along in possession under the Bombay Tenancy Act, 1939. The Tribunal remarked that the Special Deputy Collector merely followed the view of the Civil Court and held that the Kabulayats passed by the mortgagors were nominal without considering the attestation of one of the respondents herein. It then says that the Special Deputy Collector relied mainly on three documents and states that all these three documents have been considered by the Mamlatdar and as pointed out by him they do show that they relate to the lands in suit. It further remarks that the canclusion of the Special Deputy Collector that the Kabulayats and Records of Rights entries are false is not correct. It does not say why and then proi'eeds to say that the conclusions arrived at by the Special Deputy Collector are not correct and cannot be accepted. Before us also on behalf of the appellant it was' urged that what the Special Deputy Collector had done was to incorporate the reasoning of the Assistant Judge and that he had not applied his mind, and therefore the Revenue Tribunal was justified in setting aside his order. But the Special Deputy Collector had pointed out that prior to the appellant the land was with Bala Sam Mahar and Khandu Maruti Koli, that in the notice issued by the Village officers the entry of Survey No. 99 did not appear to be genuine and that a similar notice was produced by Yeshwant and Jinappa which shows the name of Shantappa Raghu Wathare as a protected tenant. He has also pointed out that the notice issued by the Talathi to the landlord Ahmedsha A B ## c D E F G H M. B, RAUT _v._ D. B. _WATHARlf(Alagiriswami,_ _!.)_ 903 did not show S. No. 99 in the possession of the appellant. He also pointed to the receipt dated 23-5-1947 passed by the landlord Usmimsha Ahmedsha Inamdar in favour of Yeshwant Shantappa Wathare on account of rent aud also that the letter dated l-~·1949 from Ahmedsha Nabisha makes it quite clear that it was a demand for rent. It is further shown that in the record of right entry the name of the appellant has been shown as protected tenant whereas the certified copy of Mutation entry shows th• appellant as protected tenant of R.S. No. 2/1 and 51/4 and not of the suit land. He has therefore come to the conclusion that the ·entry in the other rights column of the suit land that the appellant is the protected tenant appears to be wrong and incorrect. In the face of this elaborate discussion the rather infelcitious choice of words by the Special Deputy Collector calling it the inventory of the documentary evidence cannot take away the importance of the fact that he has in fact discussed the evidence. It is thereafter that he refers to the Assistant Judge's conclusion. Even then the Special Deputy Collector goes on to state that the entries in the record of right do not prove the tenancy that there was a plan to create false record and to usurp the respondents of their legal rights, that the nominal rent notes and bogus entries in record of right have been made with ulterior motive that the receipt and the letter dated 1-5-1949 clearly establish that the suit land was with the respondents for cultivation and that all these circumstances go to prove that the rent note dated 23-5-1947 was bcgus and the possession in fact was with the respondent. We are, therefore of opinion that the Triubnal exceeded its powers in setting aside the order of the Special Deputy Collector. It is not merely the Tribunal that has been in error in exceeding its jurisdiction. The High Court has similarly ignored the limitations within which it has to act while exercising its powers under Art. 227 of the Constitution. It is unnecessary to discuss the reasons which weighed with the High Court for setting aside the order of the Tribunal in so far as the order of the Special Deputy Collector is concerned a. we have also come to the same conclusion. But in so far as the High Conrt interfered with the judgment of the Tribunal which merely upheld the Prant Officer's order it was plainly in error. After the High Court, for the purpose of setting aside the order of the Tribunal in so far as the Special Deputy Collector's orders were concerned had elaborately dicussed the evidence in the case and come to the conclusion that the Tribunal was wrong and the Special Deputy Collector was right, it wound up its discussion by saying that there was no justification whatsoever for the Tribunal to interfere with the finding of fact recorded by the Special Deputy Collector and even if the Tribunal's judgment was to be considered on merits it was wholly unsupportable. If it had been content with holding that there was no justification for the Tribunal to interfere with the finding of fact recorded by the Special Deputy Collector there would have been nothing more to say but it discussed the whole evidence for coming to that conclusion and also saying that even if the Tribunal's judgment was to be consideroo on ### _f_ A B ### c D E F G H 904 SUPREME COURT REPORTS [1975] 1 s.c.R. merits it was wholl~ uns~pportable. Even so, the High Court's,iudgment has got to be sustained m regard to the order of the Tribunal m respect of the Special Deputy Collector's order which, as we have shown earlier suffers from the defect that the Tribunal overstepped its jurisdiction'. But in dealing with the application filed by Bhimarao and Dashrath against the Tribunal's ordet in so far as it upheld the order of the Prant Officer the High Court merely relied upon its discussion in the earlier part of its judgment and has remarked that as it was now held that Maruti Bala (appellant) was not the tenant of the petitioner the petitioners would be entitled to possession. It was not for the High Court to discuss the evidence and come to the conclusion as to whether the appellant was or was not the tenant on 11-8-1948. That was a matter for the Prant Officer. whose judgment has been upheld by the Tribunal. The High Court while exercising its powers under Art. 227 was not entit.led to discuss the evidence and come to its own conclusion on the evidence as to who was in possession of the land. That was a matter for the revenue authorities and only within the scope of Art. 227 could the High Court interfere. What we have discussed earlier would show that the High Court has plainly overstepped the limits of its powers under Art. 227. Its judgment in so far as this order is concerned cannot be supported. The result would be that the judgment of the High Court as far as the order of the Prant Officer is concerned would have to be set aside because the Tribuml merely uphold his orders. Civil Appeal No. 1941 of 1967 is therefore allowed. Even as far as the order of the Special Deputy Collector is concerned, the judgment of the High Court as well as the Tribunal would have to be set aside leaving it open to the Tribunal to decide the question afresh. As the High Court has taken a similar view of the Tribunal's order as we have taken we con•ider that no useful purpose would be served by directing the Tribunal to deal with the matter afresh. In the view we have taken of the Special Deputy Collector's order it does not admit of being dealt with under s. 76 of the Bombay Tenancy and Agricultural Lands Act. We, therefore, consider that it would be a us6iess formality to send the matter back to the Tribunal and it would be only prolonging the agony as far as the parties are concerned. Therefore, Civil Appeal No. 1942 of 1967 is dismissed. The result is no doubt rather curious. In respect of the possession over different parts of the same land the Mamlatdar and the Prant Officer came to the same conclusion. The Mamlatdar's order was however, set aside by the Snecial Deputy Collector with the result that that there were two conflicting judgments in respect of different parts of the same land. While the Special Deputy Collector dealt with the Mamlatdar's order as an Appellate authority and was therefore, entitled to apprechte the evidence and come to his own ~onclu­ sion, the Tribunal.while exercising its powers under s. 76 of the Bombay Tenancy and Agricultural Lands Act had no such power. In dealing with the order of the Prant Officer and upholding it the Tribunal had not overstepped the limits of its powers. But in allowing the appeal A B ... ### c D E F G H **A** #### _f_ **B** ##,. # **c** M. B. RAUT _v._ D. B. WATHARE _(Alagiriswami,_ /.) 905 against the Special Deputy Collector's order the Tribunal seems to have been influenced by the feeling that there were two conflicting orders before it and that it was its duty ito reconcile them. if possible. This it proceeded to do by dealing with the question before it as though it were the Appellate authority, which it was not. The High Court was, therefore, right in setting aside the Tribunal's crde.r in so far as the Special Deputy Colkctor's crder is concerned. But the High Court fell into the same error as the Tribunal while dealing with the order of the Prant Officer. It relied upon its discussion of the evidence in the other case for holding that the appellant was not the tenant. That again was beyond the powers of the High Court under Article 227. The conflict is inherent in the siutation and unfortunately neither the Tribunal nor the High Courf had the power to resolve it. But they have proceeded to do so by setting themselves up, so to say, as Appellate authorities, There will be no crder as to costs. **P.H.P.**