1997 Supreme(Bom) 546

IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Bandu Yesu Mali, since deceased
by his heir Akkatai Bandu Mali ..... Petitioner.
Versus
Vishnu Kundlika Sawant others .... Respondents.
Writ Petition No. 2044 of 1984, decided on 16-10-1997.
Advocates appeared :
M.A. Rane with Madhav Jamdar, for the petitioner.
N.D. Hombalkar, for respondent No. 1.

Headnote:Sections 70(b) and 84-See Constitution of India, Articles 226 and 227.

       Section 84-Collector-Powers of-The Mamlatdar was required to submit a report to Collector and not required to give a finding as to whether or not petitioner is a tenant. The finding if, any, had to be given by Collector.- The Mamlatdar was required only to submit a report to the Collector under Section 84 of the Act. The Mamlatdar was not required to give a finding as to whether or not the petitioner is a tenant. The finding, if, any, had to be given by the Collector. The Mamlatdar has clearly held that the petitioner is not a tenant. In these circumstances can it be said that the decision given by the Collector is the decision given by the competent authority under Section 84 of the Act? If, the Collector is to give a decision under Section 84 of the Act, the decision has to be his and his alone. It cannot be based on a finding given by the Mamlatdar. The finding of the Mamlatdar given under Section 70(b) of the Act can be confirmed by the Collector only when he is acting as an Appellate Court. In the present case, it appears that the Mamlatdar has acted in the capacity of a Collector and the Collector has acted in the capacity of a Mamlatdar.

       Articles 226 and 227-Bombay Tenancy and Agricultural Lands Act, 1948, Sections 70(b) and 84-Tenancy rights-Declaration of-Respondent claimed entire suit land as original tenant-Petitioner taken by him as cosharer-Petitioner got his name entered-Record of Right with regard to halt of suit land MRT in remand the matter held that petitioner wrongly got his name entered in record of rights and failed to prove his tenancy right-Held-Findings given by MRT is contrary to directions in remand-Evidence adduced by petitioner regarding entry in record-Of rights-Not challenged-Other evidence of revenue receipts etc. not considered-Then the finding given by MRT not sustainable.- The dispute concerns about half the suit land on the southern side of Gat No. 1253 admeasuring 4 hectares 46 acres i.e. 11 acres, one guntha and assessed at Rs. 74.75 situated at village Ohikhali, Tal. Karad, Dist. Satara. The land hereinafter referred to as the suit land. The suit land originally belonged to Onkareshwar Devasthan and respondent Nos. 2 to 4 are the Wahiwatdars. It is the case of respondent No.1 that the entire suit land was leased out to him only by respondent Nos. 2 to 4 and he was exclusively in possession and cultivation of the entire land and the petitioner was taken by him only as a co-sharer perekari i.e. partner in cultivation for many years. However, the petitioner got his name entered in the extract of Record of Right with regard to half of the suit land and, therefore, the respondent No. 1 complained to the revenue authorities in RTS proceedings. These proceedings were initially decided in favour of the petitioner. Against the said judgment and order, respondent No.1 preferred an appeal being appeal No. 25/67. The appeal dismissed. However, respondent No. 1 was directed to make an application under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act) for getting a declaration that the petitioner is not a tenant of the suit land. Instead of filing an application under Section 70(b) of the Act respondent No. 1 chose to file an application under Section 84 of the Act for summary eviction of the petitioner on the ground that the petitioner is unauthorisedly in possession of the suit land. This application was filed on 7th April, 1971. by an order dated 13th July, 1971, the Assistant Collector exercising his powers under Section 84 of the Act referred the matter to the Mamlatdar for sending a report as to the status of the petitioner on the suit land.

       The aforesaid finding is clearly against the directions given by the High Court in the order of remand passed in Special Civil Application No. 859 of 1975. In Court view on this ground alone the order of the MRT is liable to be set aside. However, the MRT, thereafter, considered the merits of the case. Again it is held that even on the merits the petitioner has failed to prove his tenancy. For coming to the aforesaid finding the MRT notices that the petitioner could not prove that he took on lease the land from the landlord. The discrepancies in this evidences are noticed. It is held that except his bare word there is no evidence to show that the land was leased out to him by the landlord. It is further held that the landlords themselves do not support the case of the petitioner. Thereafter the Tribunal considers the evidence with regard to Record of Rights. These entries are discarded on the ground that they have been made behind the back of respondent No.4. The MRT notice that in the RTS proceedings a direction was given to respondent No. 1 to take out an application under Section 70(b) of the Act. Even then the entries are discarded on the ground that the entires in Recorded of Rights cannot establish the title of the petitioners as a tenant, It is matter of record that proceedings in the Record of Rights were commenced by respondent No. 1. It was complained by respondent No.1 that the petitioner has wrongly got himself his name entered in the Record of Rights. This Record of Rights proceedings came to be decided in favour of the petitioner. Appeal No. 25 of 1967 filed by respondent No. 1 was dismissed. There was no revision filed against the said order.