NARAYANPRASAD HARIBHAI MAJMUDAR Vs. MERUBHAI RAYABHAI

JUDGEMENT

(1.) The petitioners are former Watandars of village Zezra situate in Taluka Viramgam District Ahmedabad. The first respondent is a tenant of the petitioners in respect of certain land situate in village Zezra. The Watan of the petitioners was abolished by the Bombay Paragna and Kulkarni Watans (Abolition) Act 1950 and under that Act the petitioners became the occupants in respect of the said land. The said land accordingly came to be governed by the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Tenancy Act). On the tillers day that is 1 April 1957 the first respondent being admittedly a tenant became the deemed purchaser of the said land and since the determination of the purchase price depended upon whether the first respondent was a protected tenant or a permanent tenant the first respondent along with certain tenants adopted proceedings for a declaration that they were permanent tenants. These proceedings were however infructuous as the Revenue Tribunal held that a joint application by several tenants was not maintainable. Notices were thereafter issued by the Agricultural Lands Tribunal for determination of the purchase price under sec. 32G and pursuant to the notice the petitioners and the first respondent appeared before the Agricultural Lands Tribunal. The first respondent claimed that he was a permanent tenant in respect of the lands held by him but this claim was disputed by the petitioners who contended that the first respondent was merely a protected tenant. The question therefore arose before the Agricultural Lands Tribunal whether the first respondent was a protected tenant or a permanent tenant. The petitioners contended that this question was triable exclusively by the Mamlatdar under sec. 70(b) of the Tenancy Act and the Agricultural Lands Tribunal had therefore no jurisdiction to entertain it and that in any event it could not be entertained by the Agricultural Lands Tribunal except upon a substantive application made under sec. 71 of the Tenancy Act. This contention was disputed by the first respondent who urged that by reason of the notification dated 9th July 1960 issued by the State Government under sec. 2(10) of the Tenancy Act the Agricultural Lands Tribunal had jurisdiction to decide the question whether the first respondent was a protected tenant or a permanent tenant and the question having arisen in proceedings validly taken under sec. 32G it was not necessary that in order to enable the Agricultural Lands Tribunal to assume jurisdiction a separate application should be made to it under sec. 71. These rival contentions raised a question of jurisdiction of the Agricultural Lands Tribunal and at the instance of the parties this question was tried as a preliminary issue. The Agricultural Lands Tribunal by an order dated 8th August 1965 upheld the contention of the first respondent and held that the Agricultural Lands Tribunal had jurisdiction to decide the question whether the first respondent was a protected tenant or a permanent tenant and a separate application under sec. 71 was not necessary to invoke that jurisdiction. This view of the Agricultural Lands Tribunal is challenged on the present petition.

(2.) The question which arises is one of jurisdiction and it depends for its determination on the true interpretation of certain provisions of the Tenancy Act. Sec. 32 enacts that on the tillers day that is 1 April 1957 a tenant shall be deemed to have purchased the land held by him from the landlord and this right to become a deemed purchaser is conferred on two kinds of tenants namely permanent tenants and protected tenants. Sec. 32G lays down the procedure for determination of the purchase price payable by the tenant on becoming the deemed purchaser and the purchase price has to be determined by the Agricultural Lands Tribunal in accordance with the provisions of secs. 32H and 63A(3). Two modes of determination of the purchase price are provided in sec. 32H one by clause (i) where the tenant is a permanent tenant and the other by clause (ii) where the tenant is a protected tenant and the amount of the purchase price therefore varies according as the tenant is a protected tenant or a permanent tenant. The Agricultural Lands Tribunal has therefore to determine in the first instance whether the person claiming to be a tenant is a tenant in respect of the land for it is only if he is a tenant willing to purchase the land that the question of determining the purchase price arises for consideration and if he is a tenant the Agricultural Lands Tribunal has further to determine whether he is a protected tenant or a permanent tenant for on that depends the determination of the amount of the purchase price. These are questions which would ordinarily fall within the jurisdiction of the Agricultural Lands Tribunal on the principle that an authority entrusted with jurisdiction to determine a particular question has by necessary implication jurisdiction to decide all incidental questions which are necessary to be decided in order to determine the main question or in other words conferment of power to do a thing carries with it by necessary implication the power to do all that which is necessary in order to accomplish that thing. But under sec. 70(b) of the Tenancy Act the jurisdiction to determine whether a person is a tenant or a protected tenant or a permanent tenant is vested in the Mamlatdar and this provision by necessary implication excludes the jurisdiction of the Agricultural Lands Tribunal to make an inquiry into this question for the purpose of the Tenancy Act. The Agricultural Lands Tribunal would therefore it would seem have no jurisdiction to decide whether a person is a tenant or a protected tenant or a permanent tenant if such a question arises in the course of the proceedings under sec. 32G. Such a question would have to be decided only by the Mamlatdar under sec. 70(b). An identical view was taken by a Division Bench of the Court in Bhikhabhai v. J. V. Vyas (1963) IV G.L.R. 873 though it may be pointed out that the reasoning on which the Division Bench proceeded in that case was slightly different from the one which has appealed to me in the present case. The Division Bench held in that case that even if sec. 70(b) were left out of account the Agricultural Lands Tribunal had no jurisdiction to decide the question whether a person is a tenant or not whereas the view which I am taking now is that but for sec. 70(b) the Agricultural Lands Tribunal would have jurisdiction to decide the question whether a person is a tenant or a protected tenant or a permanent tenant but this jurisdiction is excluded by necessary implication by sec. 70(b). This view is permissible to me despite the decision of the Division Bench since I find support for it in a recent decision of the Supreme Court given on 7th February 1967 in .. This decision of the Supreme Court clearly recognises that but for sec. 70(b) the Agricultural Lands Tribunal would have jurisdiction to determine whether a person is a tenant or a protected tenant or a permanent tenant but this jurisdiction is taken away by sec. 70(b).

(3.) If this be the correct Position it is manifest that the Agricultural Lands Tribunal would have no jurisdiction to decide whether the first respondent was a protected tenant or a permanent tenant and the order of the Agricultural Lands Tribunal holding to the contrary would be liable to be set aside. But contended the first respondent a vital difference in the provision was made by the Notification dated 9th July 1960 issued by the State Government under sec. 2(10) of the Tenancy Act. Sec. 2(10) gives an inclusive definition of Mamlatdar and says that Mamlatdar includes a Mahalkari and any other officer whom the State Government may appoint to perform the duties of a Mamlatdar under the Tenancy Act and in exercise of the power conferred under this sub-section the State Government issued the notification dated 9th July 1960 appointing each of the officers appointed under sec. 67 of the said Act to be a Tribunal for any area in the State to perform the duties of a Mamlatdar under the said Act within the area. The argument of the first respondent was that by virtue of this notification the Agricultural Lands Tribunal was clothed with the powers of a Mamlatdar under the Tenancy Act and was therefore competent to decide all questions which could be decided by the Mamlatdar under the provisions of the Tenancy Act including the question whether a person was a tenant or a protected tenant or a permanent tenant under sec. 70(b). The first respondent in support of this contention relied on two unreported decisions of Divan J. one given on 15th October 1963 in . in Kuberbhai Dahyabhai v. Gujarat Revenue Tribunal Special Civil Application No. 1093 of 1963 The petitioners contested the validity of this argument urged on behalf of the first respondent and contended that it was based on a misconstruction of the notification dated 9 July 1950. This notification argued the petitioners had merely the effect of conferring the powers of the Mamlatdar on the officers who were exercising the powers of the Agricultural Lands Tribunal so that the officers became entitled to exercise two jurisdictions one of the Agricultural Lands Tribunal and the other of the Mamlatdar and it did not have the effect of investing the Agricultural Lands Tribunal with the additional powers of a Mamlatdar. Every officer who was entitled to exercise the jurisdiction of the Agricultural Lands Tribunal was also by virtue of this notification entitled to exercise the jurisdiction of the Mamlatdar but according to the Petitioners that did not mean that when he was acting as the Agricultural Lands Tribunal he could in his capacity as the Agricultural Lands Tribunal also exercise the jurisdiction of the Mamlatdar. The petitioners strongly relied on the decision in Bhikhabhai v. J. V. Vyas (supra) to which I have already referred and contended that the ratio of this decision completely governed the determination of the present question and the impugned order holding that the Agricultural Lands Tribunal had jurisdiction to decide the question whether the first respondent was a protected tenant or a permanent tenant was therefore bad and liable to be set aside. These were the rival contentions urged before me and I will now turn to consider them.