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1965 Supreme(Guj) 118
Gujarat High Court
Judgename :B.J.DIVAN, P.N.BHAGWATI, J.M.SHELAT
PATEL GORDHANBHAI VAGHJIBHAI - Appellant
Versus
VAGHJI RANCHHODBHAI SAMTABHAI - Respondent
S.C.A. 401 of 1962
Decided On : 11/24/1965
Headnote:
Bombay District Municipal Act 1901 – Bombay Municipal Boroughs Act 1925 – Bombay Tenancy and Agricultural Lands Act 1948 – Sections 43, 2, 31, 70, 14, 34 – Jurisdictional Issue – whether as a result of the insertion of sec. 43c and the proviso in Act 67 of 1948 Civil Court which passed the decree for possession was deprived of its - jurisdiction and whether the decree was therefore incompetent as having been passed without jurisdiction – Held, When at inception of an enquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction the tribunal has to make up its mind whether it would act or not and for that purpose to arrive at some decision on whether it has jurisdiction or not – Characteristic attribute of a judicial act or decision is that it binds whether it be right or wrong – These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies acting in a judicial capacity – Since Court had jurisdiction to decide whether Act 67 of 1948 applied or not and Court came to conclusion though erroneously that suit was governed by Act as it stood at date of its inception and not as amended by Act 13 of 1956 Tribunal could not say that Court had acted without jurisdiction and that therefore the decree was a nullity – However erroneous that decree was since it was passed with jurisdiction it was binding upon the parties subject only to its being reversed or set aside by the appellate Court – Court set aside the order passed by the Revenue Tribunal and restore the order passed by the Prant Officer – Order Accordingly
( 1 ) THIS petition raises the question of interpretation of the proviso to sec. 43c inserted in the Bombay Tenancy and Agricultural Lands Act 1948 by Amending Act 13 of 1956 and its effect upon the jurisdiction of the Civil Court in which the petitioners and their deceased brother Ambalal had filed a suit for a decree for eviction against their tenant the original respondent No. 1. The petition came up for hearing before Divan J. on February 24 1964 who feeling that there was a conflict between two decisions of this Court one an unreported decision in Special Civil Application No. 105 of 1960 decided by S. T. Desai C. J. and Raju J. on January 19 1961 and the other in Kalicharan v. Mahalaxmi 4 G. L. R. 145 referred the case to a larger Bench. That is how this matter has come up before us.
( 2 ) PENDING the hearing of this petition the original respondent No. 1 died and respondents 1a to 1g were brought on record as his heirs and legal representatives.
( 3 ) BEFORE we proceed to consider the question arising in this petition it is necessary to state a few facts.
( 4 ) THE petitioners and the said deceased Ambalal were at all material times the owners of survey No. 236 admeasuring 37 gunthas situate within the municipal limits of the town of Nadiad. On May 4 1956 the petitioners and the said Ambalal filed the aforesaid suit being suit No. 152 of 1956 in the Court of Civil Judge Senior Division at Nadiad against the original respondent No. 1 for recovery of possession of the suit land. While the suit was pending the then Bombay Legislature passed an amending Act being Act 13 of 1956 which among other things amended sec. 88 inserted sec. 43c and its proviso and brought about several other changes in the principal Act 67 of 1948. The Amending Act 13 of 1956 was brought into operation as from August 1 1956 On September 5 1956 the learned Civil Judge Nadiad passed a decree directing the original respondent No. 1 to hand over possession of the said land to the petitioners and the said Ambalal. On October 24 1956 the aforesaid decree was executed and possession was taken from the original respondent No. 1 and handed over to the petitioners and the said Ambalal. It appears that the learned Civil Judge passed the aforesaid decree basing his judgment on the ground that the Amending Act 13 of 1956 would not affect a pending litigation and that the Act as it stood at the date of the institution of the said suit would apply. The original respondent No. 1 did not take any steps against the said decree and allowed the decree to become final. In 1958 however he filed an application under sec. 29 (1) of the Act on the ground that he had been wrongly dispossessed and prayed for recovery of possession from the petitioners and the said Ambalal. By his order dated June 15 1959 the Mamlatdar allowed the application and ordered possession to be restored to the original respondent No. 1. The petitioners and the said Ambalal thereupon filed an appeal before the Prant Officer Nadiad who by his order dated September 30 1959 allowed the appeal and dismissed the tenancy application filed by the original respondent No. 1. Thereafter the original respondent No. 1 filed a revision application before the Gujarat Revenue Tribunal who allowed the revision and set aside the order passed by the Prant Officer. The Tribunal followed the Full Bench decision of the High Court of Bombay in Maganbhai Jethabhai reported in 60 B. L. R. 1383 and held that in view of the proviso to sec. 43c tenancy rights of the original respondent No. 1 were retrospectively revived notwithstanding the enactment of the Amendment Act 33 of 1952 which excluded the land in question from the applicability of the Act and further held that the aforesaid decree passed by the learned Civil Judge was a nullity having been passed without jurisdiction. It is this order which has been challenged in the present petition.
( 5 ) THE question which arises for ou
