MANGALBHAI FATEHSINGH CHAUHAN Vs. BAI NANIBA

JUDGEMENT

(1.) One question which arises for our determination on this petition is as to the interpretation of section 76A of the Tenancy and Agricultural Lands Act and the scope and ambit of the powers of the Collector when he decides to act suo motu under that section and to call for the record of any inquiry or proceeding of any Mamlatdar for the purpose of satisfying himself as to the legality or propriety of any order passed by the Mamlatdar. Another question relates to limitation in the context of the exercise of the power of review conferred by section 76A on the Collector.

(2.) Opponent No. 1 to the present petition is the owner of survey No. 82 admeasuring 2 acres and 24 gunthas and situated in village Partappura in Kaira District. The petitioner before us is the tenant of that land. Opponent No. 1 filed a tenancy application in respect of this land in the Court of the Tenancy Mahalkari on 7/05/1956 and the relief sought was recovery of possession of the land on the ground of default in payment of rent for three years 1952-53 1953 and 1954-55. The Tenancy Mahalkari held in favour of the owner and directed the petitioner to hand over possession of the land to the owner. That order was made on 14/05/1958. This date is crucial and we shall presently point out it is the terminus a quo of the arguments presented before us. While determining the matter in favour of the owner the Tenancy Mahalkari did not apply his mind to the question whether it was a fit case for granting relief against forfeiture. He had the discretion but he did not consider that aspect of the matter. An application for reviewing the decision of the Mahalkari was filed by the petitioner-tenant to the Collector. The Collector in the exercise of his powers under sec. 76A however acted suo motu and called for the record and proceedings of the case some time prior to 2/04/1959. The Collector then directed the District Deputy Collector to review the case under sec. 76A. On 15/07/1959 the District Deputy Collector set aside the order passed by the Mahalkari and remanded the case to the Mamlatdar for deciding the matter in the light of the judgment given by him. He also directed that the parties should be allowed to lead further evidence. He pointed out in his judgment that the tenancy Mahalkari had not considered the question of exercising his discretion in the matter of granting relief against forfeiture in a case where the landlord claimed possession of the land on the ground of default in payment of rent. In pursuance of that order of remand proceedings were commenced in the Court of the Aval Karkun at Nadiad and in the course of those proceedings the petitioner expressed his willingness to pay within one month the amount of arrears which aggregate to Rs.848.80 nP. The Aval Karkun thereupon passed an order directing the petitioner to pay that amount within one month and ordered that if the amount was not paid by the petitioner with in the prescribed time possession would be delivered to the opponent-owner. It is not in dispute that the petitioner-tenant did deposit the amount in the State Bank of India on 2/09/1959.

(3.) Now as we have already mentioned the Collector of Kaira had suo motu called for the record and proceeding of that case prior to 2/04/1959. The petitioner evidently being unaware of the fact that the Collector had decided to act suo motu in the matter filed an appeal to the Collector on 6/04/1959. This it is of significance to note was about eleven months after the order passed by the Tenancy Mahalkari directing the tenant to hand over possession of the land in dispute to the Opponent-owner. On the 15/06/1959 the petitioner-tenant filed an application before the Collector for leave to withdraw the appeal on the ground that the appeal had been filed by him beyond the period of limitation and further that the Collector had decided to take action in the matter under section 76A of the Act. The appeal was allowed to be withdrawn.