BARODA BOROUGH MUNICIPALITY Vs. SOMA BHAIJI

JUDGEMENT

(1.) These revision applications involve a common point as regards the interpretation and application of sec. 85A of the Bombay Tenancy and Agricultural Lands Act 1948 The petitioner in each of the Civil Revision Applications Nos. 181 to 187 of 1965 filed a suit against the respondent of each revision application in which a question arose as to whether the defendant was a tenant or not. The issue as to whether the defendant was a tenant in the suit land was referred by the Civil Court to the Mamlatdar for his decision under sec. 85A of the Bombay Tenancy and Agricultural Lands Act and the suits were stayed till the decision of the competent authority under that Act. The Mamlatdar decided the issue and communicated his decision to the Civil Court. The plaintiff in each suit applied to the Civil Court for stay of the suit on the ground that he wanted to prefer an appeal against the decision of the Mamlatdar and that therefore the suit be stayed till the appellate authority decided the appeal. The learned Civil Judge refused to stay the suit on the ground that it was not necessary to wait for the decision of the appellate authority as the Mamlatdar had communicated his decision to the Civil Court. It is an admitted position that the plaintiff has preferred appeals against the decisions of the Mamlatdar in all the cases which were referred to him by the Civil Court. The learned Civil Judge while rejecting the request of the plaintiff to stay the suits relied upon a decision of this High Court in Civil Revision Application No. 154 of 1962 dated 28th August 1964. The plaintiff in each of the suits has preferred Civil Revision Applications Nos. 181 to 107 of 1965. A similar question arose in Civil Revision Application No. 50 of 1966 in which relying on the same decision of Raju J. in Civil Revision Application No. 164 of 1963 the learned Civil Judge Junior Division Karjan-Sinor disallowed the application of the petitioner for stay of the suit till the appeal against the decision of the Mamlatdar was decided by the appellate authority. In Civil Revision Application No. 139 of 1966 the learned Civil Judge Junior Division Borsad rejected the application of the petitioner to stay the suit till the decision of the appeal that was preferred before the appellate authority was arrived at. In this matter also the learned Civil Judge relied upon and follow-ed the decision of Raju J. in Civil Revision Application No. 164 of 1963. (Noted at I G. L. T. 23).

(2.) On behalf of the petitioners it was urged that Civil Revision Application No. 164 of 1963 was wrongly decided and that on a proper reading of sec. 85A together with sec. 85 of the Bombay Tenancy and Agricultural Lands Act 1948 the Civil Court was bound to stay the suit till the decision of the competent authority referred to in secs. 85A and 85 was arrived at. Mr. M. M. Patel appearing on behalf of the respondents in Civil Revision Applications Nos. 181 to 187 of 1965 and Mr. M. I. Patel appearing on behalf of the respondent in Civil Revision Application No. 50 of 1965 had urged that the decision of the competent authority referred to in sec. 85A could only mean the decision of the Mamlatdar and not the decision of any of the authorities who had the authority to hear appeals against such decisions of the Mamlatdar and that therefore the Civil Court had no power to stay the suit until the appeal preferred against the decision of the Mamlatdar was decided. Sec. 85 of the Bombay Tenancy and Agricultural Lands Act provides that

(3.) Secs. 85 and 85A of the Bombay Tenancy and Agricultural Lands Act refer to question which are required to be settled decided or dealt with by any authority competent to settle decide or deal with such issues under the Act. Under sub-clause (b) of sec. 70 it is the duty and function of the Mamlatdar to decide whether a person is a tenant or not. When such a question arises in a Civil Suit by virtue of sec. 85 the Civil Court will have no jurisdiction to settle decide or deal with such an issue as it is required to be decided by the Mamlatdar under sec. 70 of the Act. By virtue of sec. 85A of the Act it would be necessary for the Civil Court to refer such a question for decision to the Mamlatdar and until that decision is arrived at the Civil Court is enjoined to stay the suit. When a decision on such a reference by the Civil Court is arrived at by the Mamlatdar that decision of the Mamlatdar would be subject to an appeal under sub-section (1)(v) of sec. 74 and obviously the final decision on the question would be that of the appellate authority. The appellate authority thus would be the authority who would be competent to settle decide or deal with the question which is required to be decided by such authority under the Act and therefore also the appellate authority would be the competent authority within the meaning of sec. 85A and the is reference to he decision of the competent authority in sec. 85A must be to the decision of the appellate authority who as stated above according to the Act would be the competent authority settle decide or deal with the issue that has arisen before the Civil Court. If that were not so a strange and anomalous situation would arise. If on a reference by the Civil Court the Mamlatdar decided the issue in favour of one party and a decree of the Civil Court was passed in favour of that party without waiting for the decision of the appellate authority and subsequently if the decision of the Mamlatdar was reversed by the appellate authority there would be two conflicting decisions-one of the Civil Court and the other of the authority which decided the appeal against the decision of the Mamlatdar. Such a result could never have been intended by the Legislature and if we read secs. 85 and 85A together the decision of the competent authority referred to in sec. 85A is and must be the final decision arrived at by the competent authority referred to in sub-sec. (1) of sec. 85 that is anyone of the authorities in the hierarchy referred to in that sub-section.