B. J. DIVAN, T. U. MEHTA, J.

( 1 ) THIS writ petition is directed against the order passed by the Gujarat Revenue Tribunal in revision application No. TEN. 746 holding that the petitioners herein are not the tenants of the disputed fields which are situated in Dehen village of Olpad taluka in Surat District. The proceedings before the Tribunal arose out of the application filed by deceased Keshavlal Pragji husband of petitioner No. 1 and father of petitioners Nos. 2 to 7 under sec. 70 (b) of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) to obtain a decision that he is the tenant of the disputed lands. The Mamlatdar Olpad held that the petitioners are the tenants and this decision of the Mamlatdar was confirmed by the Prant Officer Olpad in appeal preferred before him by the respondent herein. The Tribunal reversed the decision of the Prant Officer while acting under its revisional jurisdiction under sec. 7o of the Act.

( 2 ) THIS matter initially came up for hearing before our learned brother S. H. Sheth J. before whom the petitioners raised the contention that the proceedings before the Tribunal were vitiated as no appeal against the findings of the Mamlatdar under sec. 70 (b) that a particular person is a tenant is provided by law and hence the appeal preferred by the respondent before the Prant officer was incompetent. The contention was that if appeal before the Prant officer was incompetent even the revision application before the Tribunal against the order of the Prant officer was equally incompetent. For the proposition that the Act does not provide any appeal against the decision of the Mamlatdar under sec. 70 (b) of the Act the learned advocate of the petitioners relied upon the decision of our learned brother J. B. Mehta J. in Sureshchandra Dhirajlal Store and others v. R. R. Shrotriya District Collector (1970) 11 G. L. R. 821. In this case Mehta J. has held that the Legislature has failed to provide any appeal against adjudication as to whether a person was a tenant or a permanent tenant and when the Legislature keeps a lacuna it is not open to the Court to fill up the lacuna by any presumed intention of the Legislature and therefore the Deputy Collector has no appellate jurisdiction over the decision of the Mamlatdar that a particular person is a tenant or not under sec. 74 (1) of the Act. The other side i. e. the respondent put reliance on the contrary decision given by Bakshi J. in Spl. C. A. No. 93/62 decided on 28/29th April 1964 wherein the learned judge has held that even though sec. 74 of the Act does not specifically provide for an appeal against the order passed by the Mamlatdar under sec. 70 (b) of the Act the said appeal is by necessary implication provided for in sec. 74 (1) (a) which refers to an order under sec. 4 of the Act. Sec. 4 of the Act as will be presently seen deals with the cases wherein persons are deemed to be tenants. In view of this conflict between the two decisions of this Court Sheth J has referred this matter to a larger bench and this is how this matter comes before us for decision.

( 3 ) BEFORE touching the controversial points involved in this writ petition it would be necessary to refer to some of the relevant provisions of the Act. Sec. 70 of the Act prescribes several duties of the Mamlatdar. Clause (b) of this section as it stands at present is in the following terms (b) to decide whether a person is or was a tenant or a protected tenant or a Permanent tenant. Sec. 74 of the Act provides for appeals and enumerates certain orders of the Mamlatdar against which an appeal can be filed to the Collector. The enumerated list of the orders which are covered by this section does not specifically refer to the order passed by the Mamlatdar under sec. 70 (b) of the Act but clause (a) of sec. 74 (1) is found to be In the following terms (A) an order under sec. 4. It is thus apparent that an appeal against the order of Mamlatdar or specifically prov

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