MOHMEDKHAN JAMIYATKHAN Vs. DADAMIYAN MOHMADMIYAN

JUDGEMENT

(1.) The petitioner who claims to be the tenant of three Survey numbers 463/2 467 and 479 at village Sonasan Taluka Prantij challenges in this petition the order of Revenue Tribunal dated March 17 1969 by which the Tribunal has dismissed the revision application confirming the order of the Prant Officer dated November 5 1965 ordering summary eviction of the petitioner from all these lands under sec. 84 of the Bombay Tenancy and Agricultural Lands Act 1948 hereinafter referred to as The Act. These three lands were purchased by Respondent No. 1 in May 1946 It appears that the petitioners brother had surrendered these lands on March 25 1957 and this surrender was verified by the order of the Mamlatdar under sec. 15(2) of the Act on April 2 1957 and was confirmed by the Collector on May 12 1958 Thereafter respondent No. 1 applied in 1958 in the Mamlatdars Court for injunction in respect of S. No. 463/2. The petitioner was found to be in possession of the survey number and so the suit for injunction under the Mamlatdar Courts Act was dismissed and this order was confirmed by the Prant Officer. In 1958 even the petitioner had applied for entering his name in S. No. 463/2 but his name was not entered and he was directed to apply under sec. 70(b) of the Act. Respondent No. 1 however applied before the Prant Officer under sec. 84 on February 10 1967 and March 20 1967 forgetting possession of these three lands from the petitioner on the ground that he was trespasser as the real tenant was his brother who had surrendered his tenancy. The petitioner raised a contention before the Prant Officer that he was a tenant of all these three lands. The Prant Officer had negatived this contention and held the petitioner to be a trespasser and had ordered his eviction. This order having been confirmed by the Revenue Tribunal the petitioner has filed this petition against the order of the Revenue Tribunal.

(2.) It appears that before the Revenue Tribunal a decision of my learned brother Divan J in Special Civil Application No. 702 of 1963 dated October 15 1963 which proceeded upon an earlier decision of the Division Bench in Shivnarayan Motilal v. Fakira Bala Rohem in Special Civil Application No. 529 of 1958 by Chainani and Tarkunde JJ. on April 25 1958 had been cited. My learned brother Divan J in terms held that in an application under sec. 84 if a question was raised whether a person concerned was a tenant or not of the land in question it is only the Mamlatdar under sec. 70(b) who can decide the question whether a person is or is not a tenant and the Prant Officer dealing with an application under sec. 84 must direct the party concerned to apply to the Mamlatdar and obtain a decision from him whether the person concerned was a tenant or not. My learned brother in terms held that the principle which emerged from the decision of the Division Bench was that the Prant Officer has no jurisdiction to decide under sec. 84 of the Act whether the person concerned was a tenant of the land in dispute and since that contention was urged before him the Prant Officer should have stayed his hands so far as the proceeding under sec. 84 was concerned and asked the party concerned to approach the Mamlatdar under sec. 70(b) for a proper decision on that particular point. In spite of this categorical pronouncement this Court the Revenue Tribunal surprised summarily brushed off this decision by observing that when the plea is raised that a person is a tenant before the Authority under sec. 84 it is not the law in this State that the Authority is bound to take his hands off and that the question whether that person was or was not a tenant must be left to be decided by the Mamlatdar. The Revenue Tribunal has further observed that such is not the law and such is not the dictum laid down by the Gujarat High Court and that for that purpose it was not necessary to cite several judgments of the Tribunal and the Gujarat High Court in which this judgment of the Gujarat High Court had been discussed. The Tribunal further stated that the law is well established that in a case in which summary eviction of a person is prayed for if that person raises a plea that he is a tenant the Authority must be satisfied about the prima facie case as to the tenability of the plea and if the plea is untenable the Authority can go into the question and direct eviction. The Revenue Tribunal without indicating any other decision of this Court thus refused to follow the binding decision of this Court ignoring the basic principle of justice and rule of law that every Court and Tribunal in the State is bound to follow the law laid down by the highest Court in the State. It is only a concurrent Court which can distinguish a decision on the ground that it is obiter or per in curiam or that it is distinguishable on facts. A superior Courts decision however can never be distinguished on these grounds as otherwise the whole administration of law through such hierarchy of subordinate Courts and tribunals would come to an end. Therefore the very fact that the Revenue Tribunal refused to follow the binding decision of this Court would amount to denial of justice and would justify reversal of the decision of the Revenue Tribunal especially as even today after an elaborate research by Shri Shah no other decision of this Court is pointed out taking any other view than the one taken by my learned brother Divan J. Even if any other decision was available to the Revenue Tribunal it should have elaborately pointed out such decision and it should not have in this cavalier fashion refused to follow a binding decision of this Court.

(3.) Mr. Shah has however after an exhaustive research tried to point out some other earlier Bombay High Court decisions and he has vehemently argued that on the basis of those decisions the Revenue Tribunals order could be supported by him. In fact the whole controversy now stands resolved by the law declared by the Supreme Court and my learned brother Divan J.s decision is in conformity with that settled legal position. In Bhimaji v. Dundappa A.I.R. 1966 Supreme Court p. 166 at page 168 their Lordships laid down the combined effect of secs. 29 70 85 and 85A of the Act in the following words:-