Madhumati Atchut
Parab V. Rajaram Vs. Parab & Ors. [2009] INSC 188 (29 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2971 OF 2001 Smt.
Madhumati Atchut Parab ...
Appellant VERSUS Shri
Rajaram v. Parab & Ors. ..Respondents
TARUN CHATTERJEE, J.
1.
This
appeal is directed against the judgment and order dated 26th of June, 2000 of
the Division Bench of the High Court of Bombay at Panaji in Letters Patent
Appeal No.9 of 1999 whereby the appeal was dismissed by the High Court based on
the decision passed in Letters Patent Appeal No.44 of 1998 decided on 13th of
June, 2000.
2.
The
relevant facts leading to the present appeal are as follows:
The appellant is the
owner of a property called VAGAD, survey No. 131, sub-division No. 33 and 37
situated at Paliem, Taluka Pernem, Goa, (hereinafter referred to as "the
disputed property"). Three persons namely Vassu, Shankar and Bhiva were
recorded as tenants in respect of the disputed property in 1972 and the present
respondents are their heirs and legal representatives. The appellant applied
before the Court of Mamlatdar at Pernem, for a declaration that the respondents
were not tenants of the disputed property within the meaning of the Goa, Daman
and Diu Agricultural Tenancy Act, 1964 (in short "Goa Tenancy Act). The
Mamlatdar, after a detailed enquiry into the facts, passed an order on 28th of
October 1986 granting the aforesaid declaration in respect of the disputed
property. In appeal, the Deputy Collector dismissed the same and affirmed the
order of the Mamlatdar, by an order dated 5th of January 1992.
Further, an appeal to
the Administrative Tribunal was taken, which reversed the orders of the Deputy
Collector and the Mamlatdar, by an order dated 30th of June, 1997 by
re-appreciating the evidence on record.
The appellant filed a
writ petition being WP No. 113 of 1998, before the High Court of Bombay at
Panaji, challenging the order of the Administrative Tribunal.
The Writ Petition was
dismissed on the ground that under Section 7 of the Goa Tenancy Act, there was
no power vested with the Mamlatdar to grant negative declaration. Aggrieved by
this judgment, the appellant filed a Letters Patent Appeal being LPA No. 9 of
1999 before the Division Bench of the High Court. As noted herein earlier, the
same was dismissed vide its judgment dated 26th of June, 2000. Thereafter, the
appellant had filed this special leave petition in this Court, which on grant
of leave was heard by us in the presence of the learned counsel appearing on
behalf of the parties.
3.
We
have heard the learned counsel appearing on behalf of the parties and examined
the materials on record. The issue which we have to deal with while disposing
of this appeal is whether under Section 7 of the Goa Tenancy Act, the Mamlatdar
was vested with the authority to grant a negative declaration to the effect
that a particular person is/was not a tenant when any such dispute is/was
referred to him for his decision.
4.
Before
going into the rival contentions of the parties, it is necessary for us to
refer to objects and reasons for enacting the Goa Tenancy Act. This Act has
been enacted to provide for the regulation of the terms of tenancy with respect
to agricultural lands in the Union Territory of Goa, Daman and Diu and for
matters connected therewith. Section 7 of the Goa Tenancy Act reads as under :-
"Section 7: Question of tenancy:- If any question arises whether any
person is or was a tenant or should be deemed to be a 4 tenant under this Act the
Mamlatdar shall, after holding an inquiry, decide such question.
In any such enquiry,
the Mamlatdar shall presume that any statement as to the existence of a right
of tenancy in a record of rights prepared in the prescribed manner under and in
accordance with the provisions of this Act, is true."
5.
As
noted hereinearlier, the learned Single Judge as well as the Division Bench of
the High Court decided that the Mamlatdar did not have any jurisdiction to
grant a negative declaration following the ratio of its decision in LPA No. 44
of 1998. On a consideration of the objects and reasons of the Goa Tenancy Act
and the relevant provisions of the same, we are of the view that although
Section 7 of the Goa Tenancy Act provides that where any question arises whether
any person is or should be deemed to be a tenant, the Mamlatdar shall, after
holding an enquiry, decide such question, even then, the negative declaration
namely "such a person is/was not a tenant" should also be dealt with
by the Mamlatdar for 5 the reasons stated hereinafter. The expression in
Section 7 of the Act as to the determination of the fact that whether a person
"is or was a tenant", would also include the question whether the
person is not a tenant, and after conducting an enquiry the Mamlatdar shall
decide the same. Therefore the question, which was raised, is that, if the
Mamlatdar after conducting an enquiry comes to the conclusion that the
concerned person is/was not a tenant, he is bound to mention the same.
Therefore, it does also amount to a declaration to the effect that the person
is not a tenant. Accordingly, it results in a negative declaration. It bemuses
us that when the wordings in the section are clear to the effect that the
Mamlatdar has to decide about the tenancy of a concerned person, the expression
"If any question arises whether any person is or was a tenant....."
can purport to have a meaning that the mamlatdar is not authorized to issue a
negative declaration that the person is not a tenant. This expression, as noted
6 herein earlier also, is clear that when there is a dispute or doubt over the
tenancy of a person, then the Mamlatdar shall decide such question after
conducting a due enquiry to establish the same.
Therefore, if the
conclusion of the Mamlatdar, on enquiry, is that a particular person is not a
tenant, he is bound to declare such a person that he is not a tenant. We do not
also have any doubt regarding the expression "is or was tenant" in
Section 7 of the Goa Tenancy Act which would include the positive declaration
as well as the negative declaration. If the observations made by the Division
Bench of the High Court are accepted, it would then mean that if a person
approaches the Mamlatdar to declare him as a tenant or on the application of a
landlord for a decision on the tenancy of his occupant, the Mamlatdar
ultimately reaches to a conclusion that the concerned person whose tenancy has
to be decided is not a tenant, he has to refrain from taking any decision and
decline to exercise his jurisdiction. Such a situation would be unacceptable,
untenable and a sheer waste of time of the Mamlatdar to conduct a detailed
enquiry under Section 7 of the Goa Tenancy Act on the application filed before
it. This, in our view, cannot be the intention of the Legislature to create
such an ambiguous position, which would result in a lengthy procedure, that
might ultimately yield no result.
6.
At
the risk of repetition, it is pertinent to mention that the expression "if
any question arises" embraces within its sweep both the facets, i.e.,
positive declaration as well as negative declaration, and the conclusion can be
reached only at the end of the enquiry. The learned counsel appearing on behalf
of the appellant contended that if we examine the provision of section 7 of the
Goa Tenancy Act and also Section 70 of the Bombay Tenancy Act, it would be
evident that both the provisions are similar in nature and are pari-materia to
each other. We have already quoted Section 7 of the Goa Tenancy Act. It is,
therefore, necessary now to reproduce Section 70 of the Bombay Tenancy Act
which is as follows :- "Section 70-Duties of the Mamlatdar:- "For the
purposes of this Act, the following shall be the duties and the functions to be
performed by the Mamlatdar :- (a) To decide whether a person is an
agriculturist;
(b) To decide whether
a person is, or was at any time in the past, a tenant or a protected tenant or
a permanent tenant...
........".
7.
In
this connection, Section 85 of the Bombay Tenancy Act is also necessary to be
produced. Section 85 of the said Act is as follows:- "Section 85 - Bar of
Jurisdiction (1) No Civil Court shall have jurisdiction to settle, decide or
deal with any question (including a question whether a person is or was at the
time in the past a tenant and whether any such tenant is or should be deemed to
have purchased from his landlord the land held by him) which is by or under
this Act required to be settled, decided or dealt with by the Mamlatdar or
Tribunal, a Manager, the collector or the Maharashtra Revenue Tribunal in 9
appeal or on revision, the State Government in exercise of their powers of
control.
(2) No order of the
Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or
the State Government made under this Act shall be questioned in any civil or
criminal court.
Explanation:- For the
purposes of this section a Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdar Courts Act, 1906."
8.
From
a bare perusal of Section 85 of the Bombay Tenancy Act, it would be evident
that this provision bars the jurisdiction of Civil Court to deal with any
question including a question whether a person is or was at the time in the
past a tenant and whether any such tenant is or should be deemed to have
purchased from his landlord the land held by him which would be decided or
dealt with only by the Mamlatdar or Tribunal or a Manager, the Collector or the
Maharashtra Revenue Tribunal in appeal or revision by the State Government in
exercise of their powers of control. When a question arises whether a
particular person is an agriculturist or a tenant or not, it is only the
Mamlatdar who has the jurisdiction to decide the same. The question, therefore,
is whether under Section 70 of the Bombay Tenancy Act, the Mamlatdar has the
power or jurisdiction to grant a negative declaration that is whether the
concerned person is or was not a tenant. In Nivrutti Laxman Kondobahiri vs.
Shiv Dayal Laxminarayan Sarda & Ors. [AIR 1960 Bombay 56] (Full Bench),
Hon.Chainani, C.J. (as His Lordship then was) observed :- "It has,
however, been urged that while an application may be made to a Mamlatdar for
obtaining a declaration that a person is a tenant, an application for a negative
declaration that a person is not a tenant, is not competent. It has been
contended that the object of the Act is to protect tenant and that it confers
special rights upon them and that consequently, where the owner of a land
alleges that person is not a tenant or that he is not entitled to be protection
of the Act, the application cannot be said to be one for the purposes of the
Act. There does not seem to us to be much force in this argument. The purposes
of the Act are, as will be seen from the preamble, to regulate the relations of
landlords and tenants of agricultural lands. While the Act confers extensive
rights on tenants, the landlords are not deprived of all their rights - For
instances, they can terminate the tenancies and resume possession of their
lands in certain circumstances. Under Section 29, both the landlords and the
tenants can apply to the Mamlatdar for obtaining possession of lands. Under
clause (b) of Section 70 of the act, the Mamlatdar has jurisdiction to
determine whether a person is a tenant. He can, therefore, also decide that a
person is not a tenant. If he can decide this question, on an application made
to him by a tenant, it is difficult to understand why he should not be able to
decide this question, when the application is made by the landlord. In either
case, the question which the Mamlatdar will have to determine is whether the
relationship of landlord and tenant exists between the parties. The
jurisdiction to decide this question vests exclusively in the Mamlatdar and the
Civil Court is not competent to decide it. This question will also have to be
determined by reference to and in the light of the provisions of the Act as to
who are and who are deemed to be tenants and as to how and in what
circumstances a tenancy can be terminated. Such a determination will,
therefore, be for the purpose of the Act. The words for the purpose of this
Act, in our opinion, mean for the purposes of deciding any question relation to
a matter, which is regulated or governed by the provisions of this Act. If,
therefore, the question raised before the 12 Mamlatdar relates to a matter,
which is to be decided by reference to the provisions of the Act, its
determination by the Mamlatdar will be for the purposes of the Act and it is
immaterial whether the application raising the question is made by the landlord
or by the tenant." (Emphasis supplied)
9.
Similar
was the view expressed by the Bombay High Court relating to Section 70 of the
Bombay Tenancy Act in the decision in Trimbak Sopan vs. Ganga Ram Mhatarba [AIR
1953 Bombay 241] in which the Bombay High Court observed as follows :-
".............A very interesting argument has been advanced by
Mr.Tarkunde, and his contention is that a suit against a trespasser is only
cognizable by the civil court, and therefore, if an issue arises in such a suit
as to whether it is for the civil court to decide that issue: if the defendant
is a trespasser, the Civil Court has jurisdiction to pass a decree for
possession; if, on the other hand, the civil court comes to the conclusion that
the defendant is a protected tenant, then the Court would have no jurisdiction
and the suit would have to be dismissed or sent to the Mamlatdar to dispose of
it according of law.
Mr.Tarkunde's further
contention is that it is only to those issues which the Mamlatdar is required
to determine in a proceeding which should be filed before the Mamlatdar that
Section 70(b) has any application........
.............Now, if
this argument was sound, really no occasion would ever arise for the Mamlatdar
to decide the issue as to whether a person is a tenant or a protected tenant,
because, if a person could only go to the Mamlatdar in those case where he
admitted that the defendant was a tenant or a protected tenant, then the issue
as to whether the person was a tenant or a protected tenant would not arise.
Such an issue can only arise when there is a dispute as to the status of the
particular person, and it is only when an allegation is made that the person is
not a tenant or a protected tenant that the Mamlatdar would be called upon to
try such an issue. Now, it is clear that the question whether a person is a
tenant or a protected tenant is not a jurisdictional fact as far as the
Mamlatdar is concerned but is a fact in issue.
The jurisdiction of
the Mamlatdar does not depend upon the person being a tenant or a protected
tenant. On the contrary, the Mamlatdar himself has been given the jurisdiction
to try the question as to whether a person is a tenant or a protected tenant.
Mr.Tarkunde says that
the issue before the civil court is not whether the defendant is a protected
tenant or not, but the issue is whether the defendant is a trespasser or a
protected tenant. In my opinion, when the Legislature has left it to the
Mamlatdar to decide the issue whether the defendant is a protected tenant or
not, it implies that he must decide that the defendant is not a trespasser 14
in order to hold that he is a tenant or a protected tenant and he must also
hold that he is a trespasser in order to determine that he is not a tenant or a
protected tenant. I agree with Mr.Tarkunde that the provisions in law which
oust the jurisdiction of the civil court must be strictly construed. But
considering it as strictly as I can, looking to the language used by the
Legislature in Section 70(b) of the Tenancy Act, and looking to the scheme of
the Act, it seems to me clear that all questions with regard to the status of a
party, when the party claims the status of a protected tenant, are left to be
determined by the Revenue Court, and the jurisdiction of the civil court is
ousted............"
10.
In
view of the discussions made hereinabove, we are, therefore, of the view that
under Section 7 of the Goa Tenancy Act, which is pari-materia with Section 70
of the Bombay Tenancy Act, the Mamlatdar is conferred with power to decide the
question after holding an enquiry whether a particular person is or is not a
tenant of the disputed property.
11.
It
is true that the High Court by the impugned judgment has distinguished the two
provisions of the two different Acts, namely, Section 7 of the Goa Tenancy Act
and Section 70 of the Bombay Tenancy Act relying on the provisions of Section 4
of the Goa Tenancy Act. According to the High Court, if Section 7 of the Goa
Tenancy Act and Section 70 of the Bombay Tenancy Act could be considered as
pari materia in that case the Mamlatdar could decide the question, i.e. the
concerned person is or is not a tenant, there would be no need to provide for
negative declaration under Section 4 of the Goa Tenancy Act. According to the
High Court, the cardinal principle of interpretation was that the duty of the
court is to give effect to the intendment of the legislature. Once the
legislature has expressly provided for grant of negative declaration in limited
cases, it would contemplate ouster of jurisdiction in matters other than
Section 4. This would also be a harmonious construction as the jurisdiction of
the civil court would not be ousted and there would be no conflicting
judgments. Making these observations, the High Court held that the language of
16 the Goa Tenancy Act contemplates that no negative declaration can be
granted by the Mamlatdar under Section 7 of the Goa Tenancy Act. At the same
time, the High Court also observed that, of course, when the issue arises
whether the person is a tenant or not before the Mamlatdar, he could always
decide whether the person who claims the right has so proved or not.
It was also the
finding of the High Court that the jurisdiction of the Mamlatdar to decide
whether the concerned person is or was not a tenant, was inherent in deciding
the said issue. Before we proceed further, let us produce Section 4 of the Goa
Tenancy Act which runs as under:- "Section 4 - Persons deemed to be
tenants - A person lawfully cultivating any land belonging to another person
(hereinafter in this section referred to as the owner) on or after the 1st of
July, 1962 but before the commencement of this Act, shall be deemed to be a
tenant if such land is not cultivated personally by the owner and if such
person is not - (i) a member of the owner's family, or (ii) a servant on wages
payable in cash or kind but not in crop share or a hired labourer cultivating
the land under 17 the personal supervision of the owner or of any member of
the owner's family, or (iii) a mortgagee in possession.
Provided that if upon
an application made by the landlord within one year from the commencement of
this Act to the Mamlatdar within whose jurisdiction the land is situated:- (a)
the Mamlatdar declares that such person is not a tenant and his decision is not
reversed on appeal or revision, or (b) the Mamlatdar refuses to make such
declaration but his decision is reversed on appeal or revision, such person
shall not be deemed to be a tenant under this Section.
Provided further that
a sub-tenant cultivating any land belonging to another person [on or after the
1st of July, 1962, but before the commencement of this Act] shall,
notwithstanding the fact that the creation of the sub-tenancy might have been
prohibited by any law for the time being in force, be deemed to be lawfully
cultivating the land as a tenant for the purposes of this section; and in such
cases, the intermediary tenant or tenants prior to the creation of the sub-
tenancy shall not be deemed to be tenant or tenants for the purposes of this
Act;
Provided further that
in the case of a person claiming to be a tenant on the ground that he was a
sub-tenant cultivating any land after the 1st July,1962, but before the
commencement of this Act, the application by 18 the landlord for a declaration
that such person is not a tenant may be made within three months of the
commencement of the Goa, Daman and Diu Agricultural Tenancy (Amendment) Act,
1966."
12.
A
plain reading of this provision which in addition would show that legislature
has provided by introducing Section 4 that the landlord can seek a negative
declaration in respect of the category of persons mentioned in Section 4(1). It
is true that under Section 4(1) of the Goa Tenancy Act, the Mamlatdar is
conferred with jurisdiction to declare the category of person mentioned therein
is or was not a tenant in respect of the disputed property. But if we read
Section 7 and the objects and reasons of the Act and considering the fact that for
a limited purpose the Mamlatdar is conferred with such power to declare the
negative declaration in respect of the certain category of persons under
Section 4(1) of the Goa Tenancy Act, it cannot be said that while deciding the
question under Section 7 of the Goa Tenancy Act, the jurisdiction of the
Mamlatdar to declare that the concerned person is or was not a tenant is
ousted. Accordingly, we are of the view that the High Court was not justified
in holding that a Mamlatdar is not conferred under Section 7 of the Goa Tenancy
Act to deal with and decide whether the concerned person is a tenant or not a
tenant in respect of the disputed property.
13.
Again
it is needed to be mentioned that the jurisdiction under Section 7 of the Goa
Tenancy Act is not confined to cases where the relationship of the landlord and
tenant is admitted. In fact, it is only where the said relationship is alleged
by one party and denied by the other that the question falls to be considered
and the decision of the question is left exclusively to be determined by the
Mamlatdar under the provision of the Act. It is likely that a trespasser would
thereby be able to prolong litigation between him and the owner of the property
by frivolously raising a plea that he is a tenant or a protected tenant; but,
on the other hand, a landlord may also frivolously allege that a tenant is a
trespasser. We must, therefore, hold that the only forum that can deal with
this plea is the Mamlatdar. If he rejects the plea, then only the dispute between
the owner and the trespasser would be triable by the ordinary Civil Court; but
otherwise, the Mamlatdar alone would decide the dispute in so far as it falls
within the purview of the Act. In our view, the jurisdiction of the Mamlatdar
under Section 7 of the Goa Tenancy Act is not confined to cases where the
question is whether a person is or was a tenant in respect of the disputed
property. The High Court in the impugned judgment, as noted herein earlier,
held that the provisions of the Bombay Tenancy Act and Goa Tenancy Act are
similar, but in view of Section 4 of the Goa Tenancy Act, the decisions of the
Bombay Tenancy Act, as referred to herein earlier, could not be applied in the
present case. We are unable to subscribe this view.
When the legislature
has provided that the landlord can seek a negative declaration in respect of
the category of person mentioned in Section 4(1) of the Goa Tenancy Act, it
cannot conclusively lead to the conclusion that in other cases, namely, where
the question arises as to whether a person is or is not a tenant, the Mamlatdar
is not conferred with any power to grant negative declaration that the
concerned person is not a tenant in respect of the disputed property.
Accordingly, we are of the view that the Mamlatdar had the jurisdiction to
declare a negative declaration, that is to say, a particular person is not a
tenant under Section 7 of the Goa Tenancy Act and, therefore, the judgment of
the High Court cannot be sustainable.
14.
That
apart, in our view, the scope of Section 7 of the Goa Tenancy Act is quite
different from that of Section 4 of the Goa Tenancy Act. Section 4 is to
operate from within a limited period of one year from the date of enforcement
of the Act, i.e., 8th of February, 1965, while section 7 is operative for all
time.
15.
For
the reasons aforesaid, we set aside the judgment of the High Court and restore
the order of the Mamlatdar and the application filed by the appellant before
the Mamlatdar stands allowed.
16.
The
appeal is accordingly allowed. There will be no order as to costs.
..............................J.
[TARUN CHATTERJEE]
.............................J.
NEW
DELHI;
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