1. As per the order passed by this court in Miscellaneous Civil Application No.2592 of 2012, since the present petition is restored, the same is to be further considered.
2. The petitioners of this petition have challenged the legality and validity of the of the order passed by the Gujarat Revenue Tribunal, dated 04.10.1996, whereby the Tribunal has restored the order of the Mamlatdar on the point of limitation and has set aside the order of the Deputy Collector.
3. The short facts are that the original petitioner preferred an application under Section-70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948(hereinafter referred to as 'The Act'), and prayed that it may be declared by the Mamlatdar that the respondents before him are not the tenants of the land in question. Mamlatdar initiated the proceedings and ultimately vide order dated 31.01.1991, held that the cause of action for the Suit arose in the year 1988 and the present Suit is filed on 07.03.1990, and therefore, the Suit being outside the limitation, the same was dismissed.
4. The matter was carried in appeal by the petitioner and the Deputy Collector vide order dated 31.08.1991 allowed the appeal and set aside the order of the Mamlatdar and he also held that the original defendants before the Mamlatdar are not the tenants of the land.
5. The matter was further carried in Revision by respondent Nos.1 and 2 and in the revision the Tribunal, as per the impugned order dated 04.10.1996, set aside the order of the Deputy Collector and maintained the order of the Mamlatdar and further directed to proceed in accordance with law for consideration of the case of deemed tenancy. It is under these circumstances, the petitioner has approached this Court by the present petition.
6. I have heard Mr. Jadeja, learned Counsel appearing for the petitioners, Mr. R.M. Shah, learned Counsel for respondent No.1, Mr. Jitendra M. Patel, learned Counsel for respondent No.2 and Ms. Moxa Thakkar, learned AGP for respondent No.3.
7. As such the whole issue before the lower authorities namely Deputy Collector as well as before the Revenue Authority was as to whether Mamlatdar was justified in dismissing the application on the ground of bar of limitation or not? When one uses the word “Limitation”, it is to be understood that the limitation period must have been expressly provided by the statute. Otherwise, if the application is to be dismissed on the ground of delay, the different considerations prevail, including the question of creation of equity by the parties or not. The initial order passed by the Mamlatdar is that the Suit is not filed within the period of six months, as provided under the Mamlatdar Courts Act, and therefore, the Suit is barred by the limitation. When the matter was further carried before the Deputy Collector, it was required that by the Deputy Collector to only examine, as to whether exercise of power for dismissal of the application on the ground of limitation was appropriate or not? But, it appears that the Deputy Collector also exceeded the jurisdiction vested in him by further examining the matter on merits of the case, as to whether the deemed tenancy or contractual tenancy would be applicable, keeping in view the relations of the parties or not? Similar situation, further, continued before the Tribunal in revisional proceedings, inasmuch as the Tribunal proceeded to examine the legality and validity, as observations made by the Deputy Collector on merits of the case are even otherwise also were exceeding the appellate jurisdiction. The Tribunal practically concluded the issue that deemed tenancy would apply and it also exceeded the jurisdiction by directing the Mamlatdar to consider the case in accordance with law, on the premise that there is deemed tenancy.
8. It is hardly required to be stated that the scope or the jurisdiction of the appellate authority i.e. Deputy Collector and also of the Tribunal could not have exceeded the jurisdiction of the Mamlatdar, which was exercised only on the point of limitation. Therefore, any observations on the other aspects, sitting in appeal or in revisional jurisdiction, could be said as exceeding the jurisdiction by the lower authority. Therefore, it appears that the observations made by the Deputy Collector and or by the Tribunal on merits, as to whether deemed tenancy can be said or that there is contractual tenancy or that on account of the relations of the parties, the bar of tenancy would operate or not, were not at all examined by the Mamlatdar. Therefore, the same could not have been examined by the Deputy Collector or the Tribunal and as to whether the Mamlatdar was justified in rejecting the application on the ground of limitation being barred by limitation or not.
9. At this stage, reference may be made to a decision of this Court in “DESAIBHAI SHANABHAI PATEL & ANR. VS. BHULABHAI PRABHUDAS PATEL & ORS.”, reported in 1994 (2) GLR 1647, whereby at Para-10, it has been expressly held as under;
“10. It is true that under Sec.12 of the M.C. Act the first Authority is required inter alia to reject the plaint if it appears on the face of the plaint that the cause of action arose more than six months before the plaint was presented. That provision certainly occurs after Sec.7 thereof. That by itself would not make Sec. 5 thereof applicable to a proceeding under Sec. 70 read with Sec.71 of the Tenancy Act by virtue of Sec.72 thereof. The reason therefore is quite simple. As pointed hereinabove, clause (d) of Sec.7 requires the litigant to state in his plaint the date on which the cause of action arose. As pointed out hereinabove, that requirement is in the light of the provisions contained in Sec.5(3) of thereof. Section 12(c)(ii) is in the context of the averment made in the plaint in the light of Sec.7(d) read with Sec.5(3) thereof. As pointed out hereinabove, the litigant is not required to state in his application under Sec. 70 read with Sec. 71 of the Tenancy Act to state the date on which the cause of action arose for making the application or for instituting the proceeding in question. In that view of the matter, the First Authority would not be required to reject the application on under Sec.
70 read with Sec. 71 of the Tenancy Act for not stating the date on which the cause of action arose. If application under Sec. 70 read with Sec. 71 of the Tenancy Act could not be rejected for want of such statement, no question would at all arise to reject the application of the ground that the cause of action arose more than six months before the plaint was presented. To per mot the First Authority to reject an application under Sec. 70 read with Sec. 71 of the Tenancy Act on the ground that it was made six months after the accrual of the cause of action arose would tantamount to reading into the Tenancy Act a provision prescribing the period of Limitation of six months for making such application under Sec. 70 thereof. No provision prescribing any period of limitation for an application under Sec. 70 of the Tenancy Act is found made therein. In that view of the matter, Sec. 12 of the M.C. Act cannot be read so as to prescribe any period of limitation for an application under Sec. 70 of the Tenancy Act.”
Ultimately, it was concluded at Para-13, as under;
“13. In view of the my aforesaid discussion, I am of the opinion that the application made by respondent NO. herein under Sec.70(b) of the Tenancy Act could not be styled as time-barred.”
10. The aforesaid legal position shows that the provisions of Mamlatdar Courts Act are not applicable for the purpose of exercise of the powers by the Mamlatdar & ALT under Section-70(b) of the Act. The whole premise of the order of the Mamlatdar is that the Suit is not filed within the prescribed period of limitation under the Mamlatdar Courts Act. It does not mean that the delay may not be considered when the Mamlatdar and ALT has to exercise powers under Section-70(b) of the Act, but, barred by express provisions of law would stand on one footing, whereas in exercise of powers on account of delay or modulating the relief on account of delay may stand on a different footing. In the case of former what is required to be considered is only express provisions of the statute, whereas in the case of latter, the evidence may be required as to whether the delay has altered the rights of the parties and if yes, to what extent and whether delay is such which may dis-entitle them to get the relief or not, since the principle operating as bar on the grounds of delay are based on equity and good conscience. Mamlatdar has not rejected the application on the second ground, namely for delay, but, has rejected the application on the ground that it is barred by limitation.
11. In view of the aforesaid discussion, the order of the Mamlatdar, rejecting the application as barred by limitation, even otherwise, could also not be maintained. Further, as observed earlier, the observations made by the Deputy Collector and by the Tribunal on the merits or de-merits of the application were premature and such observations are made without giving any opportunity to the parties of hearing and leading evidence and to examine the witnesses, if any. The aforesaid is coupled with the aspect that the Deputy Collector and the Tribunal both have exceeded in exercise of the jurisdiction. It may be recorded that learned Counsel appearing for the petitioners as well as for respondent Nos. 1 and 2 have declared before this Court that they have no objection, if the application made before the Mamlatdar is restored and Mamlatdar is directed to decide the said application under Section-70(b) of the Act, after giving opportunity of hearing to both the sides.
12. In view of the aforesaid observations, no further observations deserve to be made. But, it can be said that the Mamlatdar has committed an error, apparent on the face of the record and the order of the Mamlatdar is rather running counter to the above referred decision of this Court, whereas order passed by the Deputy Collector as well as by the Tribunal, making observations on merits of the application were in excess of the jurisdiction.
13. In view of the aforesaid observations and discussion, the impugned order passed by the Deputy Collector as well as Revenue Tribunal are also QUASHED and set aside. It is further directed that the matter of Case No.3 of 1990 (Old No. 27 of 1990), shall stand RESTORED before the Mamlatdar and ALT and Mamlatdar and ALT is, further, directed to consider the application in accordance with law, after giving opportunity of hearing and leading evidence to the parties to the proceedings and the appropriate decision shall be rendered by the Mamlatdar preferably within a period of one year from the date of receipt of the order of this Court. The petition is partly allowed. Rule is made absolute to the aforesaid extent. Considering the facts and circumstances of the case, no order as to costs.
(JAYANT PATEL, J.)
Umesh/