Back
1994 Supreme(Guj) 246
Gujarat High Court
Judgename :J.N.Bhatt
Morabia Nagji Jechand of Rapar - Appellant
Versus
Hathi Shivubha Hamirji of Mokha - Respondent
S.C.A. 144 of 1990
Decided On : 09/07/1994
Headnote:Tenancy & Land Laws - Bombay Land Revenue Code, (As extended to kutch area) Sec. 203 - Bombay Inams (Kutch area) Abolition Act, 1958 - Secs. 7 & 18 - Order of Mamlatdar under sec. 7 deciding the status of tenant and to grant occupancy certificate - Not made appealable under sec. 18 of the Act - Held, in absence of any express provision in the Act about appeal or revision general law in that regard under sec. 203 of the Code will be attracted - Matter remanded to Deputy Collector to dispose it of in accordance with law.
Important Point : Any decision or order passed by revenue officer is appealable under Sec. 203 of the Code to officer immediately superior unless express barred under the Code or any law in force
It is explicit from a plain perusal of s. 18 relating to the appeal that the order passed by a revenue authority under Sec. 7 or a decision as to whether any person is a tenant or not, is not made appealable under Sec. 18. Therefore, obviously, an appeal would not lie under Sec. 18 of the Kutch Inams Act against the impugned order of the Mamlatdar. It is not disputed that there is no rivision for revision under the kutch Inams Act. Therefore, obviously, the question of filing an appeal or revision under the kutch Inams Act would not arise.
[Para 11]
It is manifest from the clear reading of Sec. 203 that an appeal is provided against any decision or order passed by a revenue officer under the Code or any other law for the time being in force, to that officer immediately superior in the absence of any express provision of the Code or any law for the time being in force, to the contrary. The impugned order passed by the Mamlatdar deciding the status as a tenant and granting occupancy certificate under Sec. 7 of the Kutch Inams Act is not made appealable under the said Act. Therefore, it cannot be contended that provisions of Sec. 203 of the Code will not be attracted. In the absence of any express provision in the kutch Inams Act about the appeal or revision, obviously, therefore, Sec. 203 of the Code would be attracted and, therefore, an appeal is competent under Sec. 203 of the Code against the impugned order of the Mamlatdar.
[Para 13]
( 1 ) A very significant and substantial question of law has arisen as to whether an appeal would lie against the decision of the Special Mahalkari, ("the mamlatdar" for short) who has decided the question about the tenancy rights and resultant compensation, in this petition under Article 227 of the Constitution of India.
( 2 ) IT would be pertinent to have a close look to the material facts giving rise to the present petition and the merits of the aforesaid question. The petitioner purchased agricultural lands bearing S. nos. 5 and 6/1 of village Mokha of Mundra taluka of Kutch district by a registered sale deed dated 10. 4. 1950 from respondent No. 2, Panbai Velji. (the disputed property for short ). Thereafter, respondent No. 1 claiming to be a tenant in respect of the disputed land applied on 30. 3. 1963, before the revenue authority who was known as Special Mahalkari at the relevant point of time in Kutch region. The case was registered as 158 of 1963 under the Bombay Inams (Kutch area) Abolition Act, 1958 (kutch Inams Act for short ). After observing necessary procedure, and hearing the petitioner, the Mamlatdar allowed the application and granted occupancy certificate in respect of the disputed land. The case was decided on 6. 3. 1964. He held that (i) respondent No. 1 -tenant is entitled to occupancy certificate in respect of the disputed land (ii) respondent No. 2 is the Inamdar from whom the petitioner had purchased the disputed land and (iii) Rs 93/- deposited by respondent No. 1-tenant came to be ordered to be paid to the petitioner.
( 3 ) BEING dissatisfied by the said order, the petitioner questioned it by filing two appeals before two forums. He filed an appeal before the Deputy Collector, Anjar and later on, he also filed an appeal before the Special Secretary on 28. 4. 1964. The appeal preferred before the Deputy Collector came to be transferred to the Deputy Collector at bhuj on account of territorial or geographical division and he decided the appeal against the petitioner holding that he had no jurisdiction to hear such appeal, with the result that the memo of appeal was returned to the petitioner or presentation to the proper forum. It may also be noted that the appeal filed by the petitioner before the special secretary concurrently was also decided on 1. 1. 1965 wherein it was held that the appeal was not competent before that forum (Special Secretary ).
( 4 ) THE petitioner carried the matter further in revision being aggrieved by the decision of the Deputy Collector before the Gujarat Revenue Tribunal which was registered as revision No. 1 of 1976. After hearing the parties, the Tribunal reached to the conclusion on 17. 12. 1976, that the petitioner was not heard by the appellate authority and, therefore, while allowing the revision, the matter was remanded to the Deputy collector for fresh hearing on merits.
( 5 ) HAVING examined the file on remand from the GRT, the Deputy Collector, Bhuj again heard the parties and decided on 31. 7. 1978 dismissing the appeal holding that the appeal was not competent before him. Therefore, the petitioner again knocked the doors of the GRT by filing revision No. 18 of 1878 under Sec. 18 of the Kutch Inams Act. The grt dismissed the revision on 17. 7. 1979. Hence, the petitioner has come to this court by filing this petition under Article 227 of the Constitution.
( 6 ) IN the impugned order, the GRT dismissed the revision holding that the revision is incompetent. The impugned order of the Deputy collector held that the appeal filed by the petitioner against the order of the Mamlatdar does not lie and also dismissed the appeal. It appears from the facts of the present case that the petitioner has been sent from pillar to post for challenging the order of the Mamlatdar. The correctness of the impugned orders is under direct challenge in this petition.
( 7 ) WITH a view to examine the merits of this case, again, a cursory took at the ultimate finding reach
