DURGABEN MANIBHAI MAKANJI Vs. MORIA BAVIA

JUDGEMENT

(1.) THIS petition raises an important question as to the powers of a Collector under Section 84, Tenancy Act. It would appear that the first opponent is the tenant of the petitioner and according to the petitioner, the name of the first opponent's father appeared as a protected tenant in the record of rights. The father died some time in May 1952, and it is the case of the petitioner that opponent 1 surrendered the lease. The petitioner approached the Mamlatdar and obtained an order under Section 29 (2 ). According to the petitioner he had already obtained possession of the land from opponent 1 and he got the possession confirmed by the order of the Mamlatdar. The case of the tenant was that notwithstanding the order of the Mamlatdar he in fact continued to be in possession and he was only dispossessed 6y the landlord sometime in 1954. Thereupon he approached the Collector and the Collector passed an order under Section 34 summarily evicting the petitioner. The petitioner approached the Revenue Tribunal which held against him and he has now come before us under Article 227 of the Constitution.

(2.) THE powers at summary eviction are always drastic and it should be the duty of the Court to construe these powers as strictly as possible. Under Section 84 power is conferred upon the Collector summarily to evict any person unauthorisedly occupying or wrongfully in possession of any land. Presumably there is no obligation upon the Collector before he makes the order to give a Judicial hearing to the party which might be affected by such an order. Therefore, we must be careful to see that such wide powers are confined strictly to the cases mentioned in Section 84. The power summarily to evict is not against any person unauthorisedly "occupying or wrongfully in possession of any land, but it is is only against such a person provided :the case against such a person falls under either Clauses (a), (b) or (c) of Section 84 which provides.

(3.) IT may be pointed out that the landlord's contention is that ho is entitled to the possession of the land under the order made by the Mamlatdar in 1952. Therefore, clearly the landlord is in possession under a colour of title. The tenant can only succeed provided the order of the Mamlatdar is held to be invalid and what the Collector under Section 84 has done in effect is to reverse the order of the Mamlatdar because without reversing that order he could not come to the conclusion that the landlord was in unauthorised possession. The collector acting under Section 84 has no appellate jurisdiction. He cannot sit in appeal over the orders passed by the Mamlatdar. . It is only under Section 74 that the Collector is constituted the appellate authority against the orders of the Mamlatdar. But admittedly when the Collector is exercising his summary powers under Section 84, he is not acting as an appellate authority under Section 74. Therefore, from another point of view also so long as the order of the Mamlatdar stood and it had not been validly challenged by the party aggrieved by it, the Collector has no jurisdiction to reverse that order or to ignore it and come to a conclusion contrary to that order.