( 1 ) THIS is a petition filed by one Mr. Bavjibhai Morarbhai. An application was filed by this petitioner under sec. 84 of the Bombay Tenancy and Agricultural Lands Act (the Act in short) before the Assistant Collector. The learned Assistant Collector held that the application under sec. 84 of the Act was not competent and so it was liable to be rejected. The Assistant Collector who is also simultaneously an officer exercising jurisdiction under sec. 79a of the Bombay Land Revenue Code 1879 (the Code for short) tried to pass an order of eviction against the opponent on the ground that the land was new tenure land in the hands of the applicant the present petitioner and that the opponent could not get into possession. The Assistant Collector therefore passed the order of eviction under the Code.

( 2 ) BEING aggrieved by the aforesaid order of the Assistant Collector which at Annexure A to the petition the opponent Mr. Jagubhai Fakirbhai who was ordered to be summarily evicted under the rules of the Code filed the Revision No. TEN. B. S. 61 of 1978. The Gujarat Revenue Tribunal agreed with the Assistant Collector that sec. 84 of the Act was not attracted and so the England Member of the Gujarat Revenue Tribunal confirmed that part of the order of the Assistant Collector. the Revenue Tribunal however rightly remarked that the Assistant Collector exercising powers under sec. 84 of the Act and the Assistant Collector exercising powers under the land Revenue Code are different characters and that while exercising jurisdiction under sec. 84 of the Act the Assistant Collector was not competent to act under the Land Revenue Code. The Land Revenue Tribunal therefore allowed the revision application and set aside the order of summary eviction passed by the Assistant Collector. Being aggrieved by the said order of the Gujarat Revenue Tribunal the original applicant under sec. 84 on the Act has moved this Court under Article 227 of the Constitution of India.

( 3 ) BOTH the authorities below namely the Assistant Collector and the Member Gujarat Revenue Tribunal have held that the application under sec. 84 of the Act was not competent. It was the say of the petitioner in his application under the Act that he was the owner of the land and that the present respondent had as a rank trespasser effected his entry into some parts of the two survey numbers involved and therefore he was liable to be summarily evicted. Sec. 84 of the Act is quoted below: 84 Any person unauthorisedly occupying or wrongfully in possession of any land (A) the transfer or acquisition of which either by the act of parties or by the operations of law is invalid under the provisions of this Act (B) the management of which has been assumed under the said provisions. or (C) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons may be summarily evicted by the Collector

( 4 ) MR. A. H. Mehta the learned Advocate appearing for the petitioner urged that the averments made by the applicant in the petition squarely decided the question of jurisdiction. The petitioner in that application had alleged that the respondent was unauthorisedly occupying or was in possession of the land and he was the rank trespasser that he has no right to the use and occupation of the land obviously because no provision of the Act recognises the right of such rank trespassers and that the Act was silent about the eviction of such persons from the agricultural lands. In other words Clause (c) of the sec. 84 of the Act was invoked.

( 5 ) THE Assistant Collector thought that the unauthorized occupation in the present case did not fall within the purview of the Tenancy Act as the lands it appears were not granted under the provisions of the Tenancy Act. The Revenue Tribunal also thought that the unauthorised occupation alleged in this case did not fall within the purview of the Tenancy Act and the