As per case facts, the respondents' predecessor sought tenancy rights which were dismissed, leading the petitioners (Trust) to seek summary eviction under the Tenancy Act. Subsequent rejections by the SDO ...
No Acts & Articles mentioned in this case
WP-8043-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8043 OF 2023
WITH
INTERIM APPLICATION (ST) NO. 2501 OF 2025
IN
WRIT PETITION NO. 8043 OF 2023
1) Vijay Lallan Prasad Singh ]
2) Venu Srinivasan ]
3) Noel N. Tata ]
4) Jehangir H. C. Jehangir ]
5) Darius J. Khambata
all adult Indian inhabitants, in their capacity
as present Trustees of Sir Ratan Tata Trust,
a public trust registered under the
provisions of the Maharashtra Public Trusts
Act, 1950, under the PTR No.E-1649(Bom)
having its o�ce at Bombay House, Homi
Mody Street, Mumbai 400 001.
]
]
]
]
]
]
]
]...Petitioners
Versus
1) Errol Daniel Gomes
an adult, Indian inhabitant, having his
address at Flat No. 3, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
2) Muriel Ashley D’Souza
an adult, Indian inhabitant having her
address at Marie House, 1
st
Floor, 136,
Marve Road, Sundar Lane, Orlem, Malad
(West), Mumbai – 400 064.
]
]
]
]
]
3) Dan Daniel Gomes
an adult, Indian inhabitant, having his
address at Flat No. 6, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
4) Charmaine John Nonhabel
an adult, Indian inhabitant, presently at
Scotland, through her constituted attorney
Muriel D’Souza, having her address at Marie
House, 1
st
Floor, 136, Marve Road, Sundar
Lane, Orlem, Malad (West), Mumbai–
]
]
]
]
]
]
Arya Chavan 1/30
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400064. ]
5) Craig Ceynac Pereira
an adult, Indian inhabitant, having his
address at Flat No. 5, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
6) Ruben Ceynac Pereira
an adult, Indian inhabitant, having his
address at Flat No. 5, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
7) Kirk Ceynac Pereira
an adult, Indian inhabitant, having his
address at Flat No. 5, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
8) Hazel D’Souza
an adult, Indian inhabitant, having his
address at Flat No. 4, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
9) Anthony Daniel Gomes
an adult, Indian inhabitant, having his
address at Flat No. 2, Gomes Mansion,
Marve Road, Orlem, Malad (West), Mumbai
400 064.
]
]
]
]
]
10) J. N. Tata
an adult, Indian inhabitant, in his capacity as
Trustee of Sir Ratan Tata Trust, a public
trust registered under the provisions of the
Maharashtra Public Trusts Act, 1950, having
its o�ce at Bombay House, Homi Mody
Street, Mumbai 400 001.
]
]
]
]
]
]
]
11) The President
Maharashtra Revenue Tribunal, Mumbai,
having o�ce at Old Secretariat, Annex
Building, 2
nd
�oor, Kala Ghoda, Fort, Mumbai
400 032.
]
]
]
]
]
...Respondents
Sr. Adv. Narendra Walawalkar a/w Mr. Karan Rukhana, Mr. Rahul Soman,
Ms. Vijaya Rao, Mr. Avan Ardeshir i/by Mulla & Mulla and Craigie Blunt &
Caroe, for the Petitioners.
Sr. Adv. Girish Godbole a/w Mr. Vaibhav Sukadhare, Mr. Kartik i/by
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Narayanan & Narayanan, for the Respondent Nos. 1 to 8.
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : April 24, 2026
PRONOUNCED ON : June 8, 2026
--------------
JUDGMENT:
1. This is a classic example of tenants, who seek to take
disadvantage of rejection of their pre-decessor’s claim of tenancy
under the Maharashtra Tenancy and Agricultural Lands Act, 1948 (for
short “Tenancy Act”) to avoid eviction under the statutory provisions of
Tenancy Act and then shifts stand to stake ownership rights by adverse
possession.
2.Rule. With consent, Rule made returnable forthwith and taken up
for �nal disposal.
FACTUAL MATRIX:
3. By this Petition, the challenge is to the order dated 2 6
th
September, 2022 passed by the Maharashtra Revenue Tribunal ("MRT")
in Revision Application No. TNC/REV/MSD/102 of 2022 setting aside the
order dated 15
th
January, 2020 passed by the Sub-Divisional O�cer
("SDO"). The SDO had ordered eviction of Respondent Nos. 1 to 9 from
the subject property and directed possession to be handed over to Sir
Ratan Tata Trust.
4. The Petitioners along with Respondent No. 10 are the present
trustees of Sir Ratan Tata Trust, a public charitable trust claiming to be
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owners of the subject land situated at village Manori, Taluka Borivali.
Respondent Nos. 1 to 4, 8 and 9 as legal heirs of one Daniel Felix Gomes
and Respondent Nos. 5 to 7 as legal heirs of late Rita Ceynac Pereira,
who is the daughter of Daniel Felix Gomes claim interest in the suit
property through Daniel Felix Gomes.
5. Brie�y stated the facts of the case are that the said Daniel Felix
Gomes �led an application under Section 70 (b) and Section 32 G of the
Tenancy Act on 19
th
July, 2005 seeking declaration of his tenancy right
and sale of the property in his favour. By order dated 25
th
February,
2010, the Tahsildar dismissed Daniel’s application on the ground that no
documents have been produced to show that Daniel has bee n
cultivating the land since 1
st
April, 1957. Prior to the passing of the order
by the Tahsildar on 25
th
February, 2010, the Trust had �led an
application under Section 84 of the Tenancy Act before the SDO for
summary eviction of Daniel from the subject property on the ground of
unauthorized occupation.
6. Against the order of Tahshildar dated 25
th
February, 2010
rejecting Daniel’s tenancy claim, the Respondent No. 9 �led an Appeal
before the SDO. The SDO took composite hearing of the T rust's
application and appeal of Respondent No. 9 vide two di�erent orders of
2nd April, 2012, the SDO rejected the Appeal and Trust's application and
directed the present petitioners to approach the Civil Court for seeking
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recovery of possession of the said property.
7. The rejection of Daniel's tenancy claim was not challenge d
further, and hence, attained �nality. Against the rejection of the Trust’s
application, the Petitioners �led revision application before MRT, which
was allowed vide order dated 24
th
June, 2013. MRT held that as tenancy
claim has been rejected, the SDO should have exercised its power under
Section 84(c) of the Tenancy Act and remanded the Trust's application
to SDO for hearing.
8. The Trust had also �led Suit No. 1943 of 2014 in the City Civil
Court seeking permanent injunction against some of the Respondents
from obstructing the Trust's possession which came to be dismissed for
want of prosecution.
9. The SDO, upon remand, reheard the Trust’s application on 3
rd
February, 2015 and reserved the application for order. Before the order
could be pronounced by SDO, Respondent Nos. 1 to 4 �led Suit No. 420
of 2015 before this Court seeking declaration of ownership by adverse
possession. On 16
th
March, 2015, the SDO rejected the Trust’s
application as the issue of title of the subject properties was pending
before this Court.
10. In the year 2016, the trustees of the Trust, who were Defendant
Nos. 1 and 3 to 7 in Suit No. 420 of 2015, �led an application seeking
rejection of the plaint under Order VII Rule 11, relying on the decision of
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the Hon'ble Apex Court in the case of Gurudwara Sahib vs Gram
Panchayat Village Sirthala And Another
1
, which came to be dismissed
on 14
th
August, 2019, in view of the decision of the Hon'ble Apex Court
in Ravinder Kaur Grewal vs Manjit Kaur
2
, which overruled the decision
in Gurudwara Sahib vs Gram Panchayat Village Sirthala And Another
(supra).
11. In the year 2017, the Trust �led revision application before MRT
challenging the SDO’s order dated 16
th
March, 2015, and by order dated
1
st
February, 2019, MRT allowed the application holding that the
pendency of the Civil Suit by the Respondents before the High Court
will not curtail the jurisdictional aspects of holding an inquiry by SDO,
which is summary in its character, in terms of Section 84(c) of the
Tenancy Act. Against the order of the MRT dated 1
st
February, 2019, the
Respondent Nos 1 to 4 herein �led Writ Petition No. 12907 of 2019,
which came to be disposed with, as in the meantime, SDO had passed a
detailed order upon remand, with liberty to Respondents herein to
agitate the �ndings of MRT that pendency of Civil Court does not create
an impediment in present proceedings.
12. On 19
th
October, 2019, the Petitioners �led their written
statement and counter claim in Suit No. 420 of 2015.
13. The SDO, in view of the order of MRT dated 1
st
February 2019, re-
1 (2014) 1 SCC 669
2 AIR 2019 SC 3827
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heard the Trust’s application for eviction, and by order dated 15
th
January, 2020, allowed the application and ordered Respondent Nos. 1
to 9’s eviction from the suit property.
14. Respondent Nos. 1 to 4 challenged the SDO’s order by �ling
Revision Application No. 102 of 2022 before the MRT, and vide
impugned order dated 26
th
September, 2022, the order of SDO directing
eviction of the Respondents came to be set aside. Hence, the present
Petition.
SUBMISSIONS :
15. Mr. Walawalkar, learned Senior Advocate for the Petitioners has
taken this Court in detail through the various orders passed by the SDO
and the MRT and would submit that after holding that the SDO had the
jurisdiction to adjudicate the application �led under Section 84(c) of the
Tenancy Act on previous two occasions by relying on Section 316 of
Maharashtra Land Revenue Code, 1966, MRT has dismissed the revision
application by the impugned judgment. He points out the provisions of
Section 85 of the Tenancy Act barring jurisdiction of Civil Court and
submits that MRT failed to notice that the Tenancy Act and the Code of
Civil Procedure, 1908 are distinct statutes providing for its own process
of challenge to orders passed and under Section 85, there is a speci�c
bar of jurisdiction of the Civil Court to decide any issues which the
tenancy authorities are empowered to decide. He submits that MRT
Arya Chavan 7/30
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failed to take note of Section 317 of Tenancy Act which saves the
jurisdiction.
16. He submits that the suit which was initially �led by the
Respondents was not maintainable as the claim was for declaration of
title by adverse possession, which law changed after the decision in the
case of Ravinder Kaur Grewal vs Manjit Kaur (supra). He submits that
though the SDO allowed the application, the MRT took into
consideration the change in law to hold that the proceedings under
Section 84 (c) cannot be proceeded. He submits that the rights of the
parties were crystallized on the date of �ling of the application under
Section 84(c) and what was required to be seen was whether the
ingredients of Section 84(c) are satis�ed. He submits that it was
perfectly open for MRT to adjudicate Section 84(c) proceedings and
make the order subject to the outcome of the Civil Court. He submits
that the MRT erroneously applied the decision in the case of Dhondba
Raoji Jadhao vs Krishnabai Gopalrao Raje And Another
3
, in which the
proceedings under Section 84(c) were �led subsequent to the Civil Suit,
which is not the case here. He submits that if it is held that the
authorities had no jurisdiction, even MRT could not have exercised
jurisdiction and set aside the order of SDO.
17. He submits that what was invoked was power of revision under
Section 76 of the Tenancy Act and there is no decision in the impugned
3 1980 Mh. L.J. 466
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order on jurisdictional aspect, and therefore, there is a failure to
exercise jurisdiction.
18. He would further submit that in the Civil Suit, �led by the
Respondents, only the trustees are impleaded as parties and not the
Trust. He would further submit that the prayers in the Civil Suit do not
seek any divesting of the ownership title of the trust and any relief
against the trustee is irrelevant as trustees have no title to the subject
property. He submits that the �ling of the counterclaim by the
petitioners is immaterial as the same does not nullify the order of
eviction of SDO passed under Section 84(c).
19. Drawing support from the decision in the case M/s. Thakur Stone
Quarries through its Partner Munesh Hotilal Thakur vs State of
Maharashtra And Others
4
, he submits that this Court in the context of
considering the provisions of Mines and Minerals (Development and
Regulation) Act, 1957 has held that the Collector, SDO and Tahsildar
though are revenue authorities under the Land Revenue Code, they
become competent authorities under the Minor Mineral Rules and when
they act under the aforesaid rules, their orders cannot be put to
challenge in Appeal under Land Revenue Code but would be amenable
to appellate jurisdiction under the Rules. He submits that this Court has
considered the the distinct roles played by the authorities while
deciding and adjudicating applications.
4 WP No. 1318 of 2019 decided on 9
th
June, 2020 by Bombay High Court.
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20. He would further submit that the Division Bench of this Court in
the case of Mallasha Sayabanna Mangonda vs Khadir Ajam Aherwadi
5
has interpreted Section 84 of the Tenancy Act in identical case where
the opponents therein had claimed tenancy right and has held that the
Collector would have the jurisdiction to evict such an occupant, which
order would be subject to result of the suit. To support his contentions,
following decisions are cited : -
(i) M/s. Thakur Stone Quarries through its Partner Munesh
Hotilal Thakur vs State of Maharashtra And Others (supra)
(ii) Mallasha Sayabanna Mangonda vs Khadir Ajam
Aherwadi (supra)
(iii) Dhondba Raoji Jadhao vs Krishnabai Gopalrao Raje And
Another (supra)
(iv) Shree Khambhati Modh Vanik Samaj vs State of
Maharashtra And Others
6
(v) Nusli Neville Wadia vs Ivory Properties And Others
7
21. Mr. Godbole, learned Senior advocate for the Respondents would
submit that this Court in present proceedings cannot go into the merits
of the Civil Suit. He would point out that even otherwise the contention
is baseless as the counter claim is �led by the Petitioners who are
trustees and not by the trust. He would further point out that in the
5 [1969 Mh.L.J.]
6 [2023] 0 BHC (AS) 38570
7 (2020) 6 SCC 557
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counter claim, the relief of ownership of trustees is sought and not of
the Trust. He submits that the Trust is a juristic entity and the
proceedings will have to be �led through the trustees. He submits that
the suit and the counterclaim were on record of MRT and in view of the
pending civil proceedings, MRT has rightly held that no summary
eviction under Section 84(c) can be granted.
22. He would submit that after order of remand dated 24
th
June,
2013, the Tenancy Application No 1 of 2010 was heard by the SDO and
the Petitioner’s application was rejected vide order dated 16
th
March,
2015. He submits that the Respondents �led their suit for seeking
declaration of ownership by adverse possession and chamber summons
�led under Order 7 Rule 11 of CPC came to be disposed of on 14
th
August, 2019 pursuant to which the counter claim was �led by the
Petitioners.
23. He submits that the decision of MRT dated 1
st
February, 2019
based on the decision in the case of Mallasha Sayabanna Mangonda vs
Khadir Ajam Aherwadi (supra) is contrary to the Supreme Court
decision and is therefore unsustainable. He submits that on the day of
passing of the order of 1
st
February, 2019, the counter claim was not
�led, which came to be �led on 18
th
October, 2019.
24. He submits that after remand, the SDO passed the order of
eviction dated 15
th
January, 2020 and in revision, MRT considered the
Arya Chavan 11/30
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change in the law and in view of the proceedings pending before the
Civil Court rightly dismissed the revision.
25. He submits that the Division Bench of this Court in Smt. Durgaben
Manibhai Makanji vs Moria Bavia
8
considered the powers of summary
eviction under Section 84 of Tenancy Act to be drastic. He submits that
the Division Bench has held that power to summarily evict is not against
any person unauthorisedly occupying or wrongfully in possession of any
land but is only against such a person provided the case of such person
falls under either clause (a), (b) or (c) of Section 84. He submits that the
Division Bench of this Court in Mallasha Sayabanna Mangonda vs
Khadir Ajam Aherwadi (supra) took a view contrary to Smt. Durgaben
Manibhai Makanji vs Moria Bavia (supra) and points out the �nding in
Mallasha Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra)
interpreting Section 84 holding that if the intention was that powers
under Section 84(c) of the Act would be exercised only if the possession
or occupation was against any prohibition as such in the Act itself, it
would have clearly said so. He would further point out the decision of
Hon’ble Apex Court in State of Punjab And Others vs Bhai Ardaman
Singh And Others
9
considering pari materia provisions holding that the
jurisdiction is attracted when it is established that the person in
wrongful or unauthorised possession was not entitled to the use and
8 AIR 1956 Bom 706
9 AIR 1969 SC 13
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occupation of the lands under the provisions of the Act.
26. He submits that in the present case, as the Petitioner’s claim that
the Respondent's are in unauthorised possession of the land, the
remedy lies in Civil Court as the condition precedent for exercise of
jurisdiction under Section 84 is absent. The decisions cited by Mr.
Godbole in support of his contentions are as under:
(i) Smt. Durgaben Manibhai Makanji vs Moria Bavia (supra)
(ii) Suleman Hasham Memon vs Kashiram Bhau Patil
10
(iii) Mallasha Sayabanna Mangonda vs Khadir Ajam
Aherwadi (supra)
(iv) State of Punjab And Others vs Bhai Ardaman Singh And
Others (supra)
(v) Kashiram Shriram Doble vs Maharashtra Revenue
Tribunal At Nagpur And Others
11
(vi) Dhondba Raoji Jadhao vs Krishnabai Gopalrao Raje And
Another (supra)
27. In rejoinder, Mr. Walawalkar would distinguish the judgments
cited by Mr. Godbole and would point out that in the decision of State
of Punjab And Others vs Bhai Ardaman Singh And Others (supra), the
Counsel for State of Punjab was unable to point out any provision which
renders the respondent therein disentitled by virtue of provisions of the
10 1958 SCC Online Bom 77
11 AIR 1970 Bombay 366
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Act. He would point out that the decision of Mallasha Sayabanna
Mangonda vs Khadir Ajam Aherwadi (supra) distinguished the decision
of Smt. Durgaben Manibhai Makanji vs Moria Bavia (supra), that the
observations in Smt. Durgaben Manibhai Makanji vs Moria Bavia
(supra) have to be considered in context in which they are made. He
would further submit that as the application under Section 70 (b) of the
Tenancy Act was rejected, the Respondents were trespassers on the
date of �ling of the application under Section 84(c) of Tenancy Act.
REASONS AND CONCLUSION :
28. The core issue arising for consideration is whether in the present
case, the condition precedent for exercise of powers of summary
eviction under Section 84 of the Tenancy Act were present and thus the
revenue authorities could not have refused to exercise jurisdiction.
29. Section 84 of the Tenancy Act reads as under:
"84. Summary eviction- 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
operation 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."
30. The debate essentially is whether the words “to the use and
occupation of which he is not entitled under the said provisions” means
that the person is disentitled by virtue of provisions of Tenancy Act to
the use and occupation and could be summarily evicted under Section
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84(c) or that it means that the person is not entitled to the use and
occupation under the provisions of Tenancy Act.
31. The Hon’ble Division Bench of this Court in Smt. Durgaben
Manibhai Makanji vs Moria Bavia (supra) was considering a case of
purported surrender of tenancy and the landlord’s case was that
possession was obtained from the tenant and the possession was
con�rmed by order of Mamlatdar under Section 29(2) of Tenancy Act.
The case of tenant was that he continued in possession and was
dispossessed subsequently by landlord. The tenant approached the
Collector under Section 84 of Tenancy Act which summarily evicted the
landlord. The Hon’ble Division Bench considered the provisions of
Section 84 and held that the words “and the said provisions does not
provide for eviction of such persons” to qualify all three clauses of
Section 84. The Hon'ble Division Bench thus held that for Section 84 to
apply, the person unauthorisedly occupying the land must also fall
within clause (c). Pertinently, it also noted as under:
“The Legislature was very careful in enacting this Section and conferring this
wide power upon the Collector to see that where a procedure for eviction
was provided for in the Act itself that procedure had to be availed of and it
was only in these rare cases where the tenant or the landlord had to proceed
against a person unauthorisedly in possession and there he could not avail
himself of the procedure under the Tenancy Act that he could approach the
Collector and ask his assistance for summary eviction.”
32. The said decision of Smt. Durgaben Manibhai Makanji vs Moria
Bavia (supra) was considered and distinguished in the case of Mallasha
Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra), where the
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Hon’ble Division Bench interpreted the words “the provisions” occurring
in Section 84 to to mean that the occupant is not entitled under any of
the provisions of the Act to occupy or use the land and if there is no
provision for eviction of such person, Section 84 would apply. The
Hon’ble Division Bench in paragraph 15 considered the various
provisions under the Tenancy Act which provided for evictions of
persons whose possession or occupation becomes unlawful because of
the provisions of the Tenancy Act.
33. In Mallasha Sayabanna Mangonda vs Khadir Ajam Aherwadi
(supra), the owner of the land had created a mortgage in respect of the
suit land, which was sold in auction. The Respondent No 1 �led an
application under Section 84(c) claiming to be a tenant and that the
purchase by the Petitioner was void. The application came to be
rejected on the ground that Respondent No 1 was not a tenant and he
could not make an application under Section 84(c), which attained
�nality. Thereafter, the Petitioner �led an application under Section
84(c) for eviction of Respondent No 1 which was not entertained on the
ground that there was no jurisdiction as Respondent No 1 was not in
wrongful possession by virtue of provisions of the Tenancy Act. In such
facts the Hon’ble Division Bench held that in paragraph 14 as under:
“14. It is argued that the words “to the occupation and use of which
he is not entitled under the said provisions” contained in clause (c) of
Section 84 of the Act must mean that because of the provisions of
the Act he is not entitled to use or occupy the land in dispute i.e.
whose possession of the land is rendered unlawful by virtue of some
Arya Chavan 16/30
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provisions of the Act. It seems, with all respect, that the words must
be given their natural meaning and we would not be justi�ed in
trying to paraphrase the said expression. If the Legislature intended
to provide that the powers under section 84(c) of the Act would be
exercised only if the possession or occupation was against any
prohibition as such in the Act itself, it would have clearly said so. The
words are “ to the use and occupation of which he is not entitled
under the said provisions” and they can only mean that the
provisions do not entitle him to use and occupy the said land. The
words “the said provisions” do not mean merely the provisions
relating to transfers. In clause (a) of section 84, the words used are
“under the provisions of this Act” while in clause (o), the words are
“under the said provisions”. They can only mean the provisions of the
Act, and if it is shown that the occupant is not entitled under any of
the provisions of the Act to occupy or use the land and if there is no
provision for eviction of such persons, section 84 would apply.”
34. Mr. Godbole would argue that the decision in Mallasha
Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra) cannot be
followed for the reason, (a) The decision of Smt. Durgaben Manibhai
Makanji vs Moria Bavia (supra) took a contrary view, and (b) the
decision was contrary to Supreme Court decision of State of Punjab
And Others vs Bhai Ardaman Singh And Others (supra). The decision in
Mallasha Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra) held
that jurisdictional fact for exercising Section 84 powers is the
unauthorised occupation under the provisions of Tenancy Act and not
unauthorised occupation because of provisions of Tenancy Act. The
decision of Smt. Durgaben Manibhai Makanji vs Moria Bavia (supra)
was brought to notice of Court in Mallasha Sayabanna Mangonda vs
Khadir Ajam Aherwadi (supra) and was distinguished.
35. The Hon’ble Apex Court in Gregory Patrao And Others vs
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Mangalore Re�nery and Petrochemicals Limited And Others
12
has held
that subsequent decision distinguishing the earlier decision would
constitute binding precedent as under:
"This Court thereafter had considered the decisions in the case of UP Awas
Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra)
and has distinguished the same and has observed and held that the decisions
in UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P)
Ltd. (supra) shall not be appliable with respect to the acquisition under the
KIAD Act, 1966. Once, this Court in the subsequent decision in Peerappa
Hanmantha Harijan (supra) dealt with and considered the earlier decisions in
UP Awas Evam Vikas Parishad (supra) and Himalayan Tiles and Marble (P)
Ltd. (supra) and distinguished the same and observed and held with respect
to the acquisition under the KIAD Act, 1966 that the allottee company can
neither be said to be a “person interested” nor entitled for hearing before
determination of compensation, the said ratio was binding upon the High
Court. Thus, it was not open for the High Court to not follow the binding
decision of this Court Peerappa Hanmantha Harijan (supra) by observing
that in the subsequent decision in Peerappa Hanmantha Harijan (supra), the
earlier decisions in UP Awas Evam Vikas Parishad (supra) and Himalayan
Tiles and Marble (P) Ltd. (supra) have not been considered. The High Court
has not noted that as such while deciding the case of Peerappa Hanmantha
Harijan (supra), this Court did consider the earlier decisions in UP Awas Evam
Vikas Parishad (supra) and Himalayan Tiles and Marble (P) Ltd. (supra) and
had clearly distinguished the same. Not following the binding precedents of
this Court by the High Court is contrary to Article 141 of the Constitution of
India. Being a subsequent decision, in which the earlier decisions were
considered and distinguished by this Court, the subsequent decision of this
Court was binding upon the High Court and not the earlier decisions, which
were distinguished by this Court.”(Emphasis supplied)."
36. Applying the principle of law set out by the Hon’ble Apex Court,
judicial discipline restrains the Single Judge from debating which
decision should be followed as the Hon’ble Division Bench in Mallasha
Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra), having
considered the decisions of Smt. Durgaben Manibhai Makanji vs Moria
Bavia (supra) and Suleman Hasham Memon vs Kashiram Bhau Patil
(supra) and having distinguished the decision of Smt. Durgaben
12 (2022) 10 SCC 461
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Manibhai Makanji vs Moria Bavia (supra), the decision of Mallasha
Sayabanna Mangonda vs Khadir Ajam Aherwadi (supra) would bind
this Court.
37. In identical facts, where the tenant had failed in its claim of
tenancy, the Hon’ble Division Bench in Mallasha Sayabanna Mangonda
vs Khadir Ajam Aherwadi (supra) has held that he is not entitled to the
use or occupation of the land under any provision of the Tenancy Act.
There is also no provision in the Act for his eviction and the Collector,
therefore, would have jurisdiction to act under Section 84(c) of the Act.
38. Dealing with the second ground canvassed by Mr. Godbole, the
decision of the Hon’ble Apex Court in State of Punjab And Others vs
Bhai Ardaman Singh And Others (supra) was clari�ed by the Hon’ble
Apex Court in Mohan Lal vs Kartar Singh And Others
13
. In Mohan Lal vs
Kartar Singh And Others (supra), the three judge Bench of the Hon’ble
Apex Court considered the issue of correctness of the decision in State
of Punjab And Others vs Bhai Ardaman Singh And Others (supra) as
the same was doubted by two Judge Bench of the Hon’ble Apex Court
for the following reasons:
"We do not see any warrant for the proposition that in order to attract
Section 43(1)(b) there should be a speci�c and express provision in the
Tenancy Act itself to the e�ect that those who are in illegal occupation will
not be entitled to use the land. The Collector has been invested with the
power to eject unlawful occupants under Section 43(1)(b) . The provision
will become meaningless if even in cases where a tenant admittedly in
possession hitherto is forcibly dispossessed, and yet the Collector has no
jurisdiction to evict him by holding an appropriate enquiry on being satis�ed
13 1995 Supp (4) SCC 684
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that the tenant was forcibly dispossessed. Certainly, no express provision
providing that a person in unlawful occupation will not have a right to
continue in occupation of the land is necessary. By the very nature of his
occupation being found to be unlawful, he has no legal right to continue in
occupation of the land. It is implicit in Section 43(1)(b) that an unauthorised
or unlawful occupant has no right under the said Tenancy Act to remain in
possession. In view of the numerous judgments of this Court in regard to
tenancy legislations the said decision requires reconsideration. In view of the
fact that the provisions constitute a complete code and are specially enacted
to protect the tenants without obliging them to resort to time-and-money
consuming civil suit, the decision in Ardaman Singh's case requires
reconsideration.
39. The three judge bench of Hon'ble Apex Court considered the
provisions of Section 43 and Section 47 of Pepsu Tenancy an d
Agricultural Lands Act (President's Act 8 of 1953) (for short "PEPSU")
and clari�ed State of Punjab And Others vs Bhai Ardaman Singh And
Others (supra) as under:
"Section 43 and 47 of the Act, in the context of which we have to decide
the questions which arise for our consideration, read as under:
"Section 43. (1) Any person who is in wrongful or unauthorised possession
of any land:-
(a) the transfer of which either by the act of parties or by the operation of
law is invalid under the provisions of this Act, or
(b) to the use and occupation of which he is not entitled under the
provisions of this Act, may, after summary enquiry, be ejected by the
Collector, who may also impose on such person a penalty not exceeding
�ve hundred rupees. (2) the Collector may direct that whole or any part of
the penalty imposed under sub-section (1) shall be paid to the person who
has sustained any loss or damage by the wrongful or unauthorised
possession of the land.
Section 47. (1) No Civil Court shall have jurisdiction to settle, decide or
deal with any matter which is under this Act required to be settled,
decided or dealt with by the Financial Commissioner, the Collector or the
prescribed authority.
(2) No order of the Financial Commissioner, the Commissioner, the
Collector or the prescribed authority made under or in pursuance of this
Act shall be called in question in any Court."
7. In Bhai Ardaman Singh's case the tenants had applied to the Collector
under Section 43 of the Pepsu Agricultural Lands and Tenancy Act of
1953 (Pepsu Act 8 of 1953), which had come into force on December 13,
1953, for restoration of possession of lands which were in their
possession earlier, alleging that they were forcibly dispossessed by the
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land owner and, therefore, he was in wrongful and unau thorised
possession of those lands. The Collector granted the applications and
ordered restoration of possession. The orders were con�rmed in appeal
by the Commissioner. A learned Single Judge of the High Court dismissed
the petitions �led against those orders. In appeals under the Letters
Patent the High Court reversed the orders passed by the learned Single
Judge on two grounds. It held that the Act of 8 of 1953 did not have
retrospective operation and, therefore, no order for restoration of
possession could have been passed as dispossession had taken place in
1943 i.e. long before the Act was brought into force. It also held that the
proceedings of the Collector were vitiated because the landowner was
not given an opportunity to lead evidence. This Court upheld the view of
the High Court that Section 43 had no retrospective operation. It also
held that in order to attract the jurisdiction of the Collector to hold a
summary enquiry and to pass an order of eviction and restoration of
possession under clause (b) of Section 43 (1), it was necessary to show
that the person in wrongful or unauthorised possession was also not
entitled to the use and occupation of the land under the provisions of the
Act. As no provision was pointed out which had rendered the landowner
disentitled by virtue of the provision of that Act to the use and
occupation of the land, it was held that the condition precedent to the
investment of jurisdiction in the Collector being absent, the orders passed
by the revenue authorities were without jurisdiction. Obviously that view
was taken by this Court because in that case the tenants had made
applications under Section 43 of Act 8 of 1953 and, therefore, unless
the conditions mentioned in that Section were satis�ed no order of
eviction could have been passed thereunder. The said Act did not have
retrospective operation and the remedy provided by Section 43 was
intended for acts of unlawful or unauthorised dispossession which
were to take place after that Act came into force and for those cases
where a person was found in unlawful or unauthorised possession
since before that Act and the Act had rendered that per son
disentitled to the use and occupation of that land. It was in this
context that this Court observed that no provision of that Act was
pointed out to show that the landlord besides being in unlawful or
unauthorised possession, was not entitled to the use and occupation
of those lands under the Act. In view of the peculiar facts of that case,
we are of the opinion that, it was correctly decided by this Court.
Another factor which possibly in�uenced this Court in taking that view
was that prior to the passing of that Act the tenants did not enjoy the
protection as was granted by Section 7 of that Act and it was open to
the landlord to terminate the tenancy at any time without giving any
reason. (Emphasis supplied)"
40. The Hon'ble Apex Court clari�ed that the decision of State of
Punjab And Others vs Bhai Ardaman Singh And Others (supra) was
decided in peculiar facts of that case and the remedy under Section 43
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was intended for those cases of unlawful possession since before the
Act and Act rendered the person disentitled to use and occupation. In
Mohan Lal vs Kartar Singh And Others (supra), one Nahar Singh who
was owner of the land had �led suit for possession of the land on basis
of ownership and also on the ground that order of eviction passed
against him under Section 43 of PEPSU was null and void. Mohan Lal
who was the tenant in a compromise on 16
th
June, 1995 had handed
over possession of the land to Nahar Singh and thereafter �led
application for eviction of Nahar Singh under Section 43 of PEPSU,
which was allowed and Mohan Lal got back possession of the land. The
Civil Court held that the Sub Divisional Magistrate had no jurisdiction
under Section 43 of PEPSU when the possession was surrendered by
Mohan Lal and the relationship of landlord and tenant came to an end.
The suit was decreed and in LPA, relying upon the decision in State of
Punjab And Others vs Bhai Ardaman Singh And Others (supra), it was
held that as possession of Nahar Singh-landlord was not unlawful,
Collector had no jurisdiction.
41. In such facts, the correctness of decision of State of Punjab And
Others vs Bhai Ardaman Singh And Others (supra) was doubted and
the Hon’ble Apex Court in Mohan Lal vs Kartar Singh And Others
(supra) held in paragraph 8 as under:
"8. In this case, it is not in dispute that if Nahar Singh had in fact
dispossessed Mohan Lal forcibly then Nahar Singh would be a person in
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unlawful and unauthorised possession and also not entitled to the use
and occupation of that land. It was not contended before us, and in our
opinion rightly, that even after the Act has come into force, it would
still be necessary for the person applying under Section 43 for an
order of eviction to show that the other person is not only in unlawful
or unauthorised possession of the land but is also not entitled to its
use and occupation under the Act. (Emphasis supplied)"
42. The decision of Mohan Lal vs Kartar Singh And Others (supra)
clari�es the position that it is not necessary to show that the person is
not only in unlawful or unauthorised possession but is also not entitled
to use and occupation under the Act. Section 43 of PEPSU being pari
materia to Section 84 of Tenancy Act, the principle of law would apply to
Section 84 of Tenancy Act.
43. The present case stands on better footing as the Respondents
failed in their claim for tenancy and were in unauthorised possession of
land and were also not entitled to possession under the provisions of
Tenancy Act.
44. The Respondents themselves applied under the provisions of the
Tenancy Act claiming tenancy and once their application is rejected did a
complete volte-face contending that they are not disentitled to
possession because of provisions of Tenancy Act and being rank
trespasser, only civil court would have jurisdiction. The dismissal of the
tenancy claim indicates that they are not entitled to the use or
occupation of the land under the provisions of Tenancy Act. In any
event, the Hon’ble Apex Court in Mohan Lal vs Kartar Singh And Others
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(supra) has held that it is not necessary to show that the person is also
not entitled to its use and occupation under the Act.
45. The SDO vide order dated 15
th
January, 2020 passed the order of
eviction against the Respondents, holding that the Respondents or their
pre-decessor does not come within the purview of tenancy of suit lands
and the application for declaration of tenancy under Section 70(b) was
rejected, which order has attained �nality and that there was no
relationship of landlord and tenant. It further noted that there is no
explanation as to how the Respondent’s pre-decessor obtained
possession of the suit land and that their possession was not lawful or
legal. The SDO considered the order of MRT dated 1
st
February, 2019
which had held that pendency of Civil Suit will not create an impediment
in the application and concluded that Respondents are not entitled to
possession of land and passed order of eviction.
46. By the impugned judgment dated 26
th
September, 2022, the
Learned Member of MRT interfered with the �ndings of the SDO, for
the following reasons:
(a) That by virtue of change in law, the party in adverse
possession can �le a suit seeking declaration of title
(b) By �ling counter claim in such a suit, the trust had
sought declaration of its title.
(c) the SDO did not consider the change in the position
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of law, and the provisions of Section 316 of the
Maharashtra Land Revenue Code contemplate bar of
jurisdiction to this Tribunal where the matter is sub-juice
in the Court of law which will also apply to case of
summary eviction under the Tenancy Act and
(d) There could not be two alternate remedies
concerning the same property and if the machinery of
Civil Court is already set in motion, the proceedings will
not be maintainable by relying upon decision of
Dhondba Raoji Jadhao vs Krishnabai Gopalrao Raje
And Another (supra).
47. The Learned Member of MRT con�ated the issue of pendency of
the Civil Suit seeking declaration of ownership with the issue arising for
consideration under Section 84 of Tenancy Act. The Authority under
Section 84 is required to be determine the nature of the use and
occupation of the subject land in terms of clause (c) of Section 84 and in
event the possession is unauthorised or unlawful can order eviction. The
pendency of the Civil Suit does not take away the jurisdiction of the
Collector under Section 84, which vest exclusively with the authorities
under the Tenancy Act. The Learned Member of MRT considered the
provisions of Section 316 of Land Revenue Code which barred the
jurisdiction of Tribunal in any matter which is sub judice in Court of Law.
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The Tribunal while adjudicating the revision application was considering
the validity of the order passed by the authorities under the Tenancy
Act. Section 317 saved the powers of Tribunal conferred on it under
other enactment. The authorities even if revenue authorities were
adjudicating proceedings in the context of Tenancy Act, and Section 85
of Tenancy Act expressly bars the jurisdiction of Civil Court in respect of
any question which is by or under the Tenancy Act required to be dealt
with by the Tribunal in revision in exercise of their powers of control.
48. The Hon’ble Apex Court in Mohan Lal vs Kartar Singh And Others
(supra) held in paragraph 11 and 12 as under:
"11. Section 43 is aimed at a person who may be found by the Collector in
unlawful or unauthorised possession of land because of one of the two
contingencies mentioned in that section. Even if the transfer in his favour
is by an act of the parties or by operation of law, if it is declared to be
invalid under the provisions of the Act, the Collector can treat it as
unlawful and eject him from the land. So also, a person in possession of
land, If found not entitled to its use and occupation under the provisions
of the Act, can also be ejected therefrom. This provision clearly indicates
the intention of the legislature that it should prevail over not only the
acts of the parties but operation of laws also, in the matter of transfer
and possession of agricultural lands. The purpose of this provision is to
see that the object of protection of tenancy rights and land reforms is
ful�lled. Therefore, it confers a new right and provides a quick and
e�ective remedy for enforcement of that right. It also confers power on
the Collector to impose a penalty. The power can be exercised by the
Collector suo motu. The words "under the Act" used in clauses (0) and (b)
indicate the scope of enquiry and �x the ambit of the jurisdiction of the
Collector to deal with cases of unlawful and unauthorised possession of
the land. They also lead to the conclusion that if the nature of possession
is to be determined in terms of clauses (d) and (b) then it would be a
matter to be decided under the Act. The decision of the Collector made
under or in pursuance of the Act has been made �nal in the sense that it
cannot be called in question in any court. Section 47 speci�cally bars the
jurisdiction of civil court in matters which are required to be settled,
decided or dealt with by the Collector. It, therefore, becomes clear that
the legislature wanted the Collector to be an exclusive forum for the
matters falling within the scope of Section 43.
12. On consideration of the object of the Act the purpose of Section 43
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and the bar contained in Section 47 it becomes clear that the legislature
intended to oust the jurisdiction of the civil court and confer exclusive
jurisdiction on the Collector in matters which fall within the scope and
ambit of Section 43. As rightly contended by the learned counsel for the
appellant this view would be in consonance with the principles of
interpretation pointed out by this Court in Dhulabhat v. State of M.P.
(Emphasis supplied)"
49. The Hon’ble Apex Court has held that exclusive jurisdiction is
conferred on the Collector in matters which fall within the scope of
section 43 of PEPSU and the jurisdiction of civil court in such matter is
barred. The Hon’ble Apex Court was considering Section 43 of PEPSU
which is pari materia to Section 84 of Tenancy Act, the only distinction
being that Section 84 further quali�es the right to invoke Section 84 of
Tenancy Act only where the provisions do not provide for eviction of
such persons. There is no submission canvassed to demonstrate any
provision of Tenancy Act which would provide for eviction of the
Respondents in the present case.
50. The pendency of the civil proceedings does not a�ect the
jurisdiction of the authorities under Section 84 of the Tenancy Act and
on the contrary, applying the decision of the Hon’ble Apex Court, the
jurisdiction of Civil Court is ousted in matters falling within the scope
and ambit of summary eviction under Section 84 of Tenancy Act.
51. The Learned Member of MRT relied upon the decision of Dhondba
Raoji Jadhao vs Krishnabai Gopalrao Raje And Another (supra), to
support its conclusion that summary jurisdiction where machinery of
civil court is already set in motion should be discouraged. In that case,
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the Petitioner was held to be neither a tenant nor a person in
possession in pursuance of agreement for sale. The Responden t
thereafter �led civil suit for possession and also moved the Collector for
summary eviction under Section 120(c) of the Tenancy Act of 1958. The
Petitioner therein contended that the proceeding under Section 120 of
the Tenancy Act was not maintainable especially when the dispute is of
civil nature, and the Civil Suit for seeking the same relief of eviction is
pending. The Court held that if there are any complicated questions
either of law or of fact, the Collector would be justi�ed in staying his
hands in the matter. Pertinently, the Court relied upon the decision in
State of Punjab And Others vs Bhai Ardaman Singh And Ot hers
(supra). It further held in paragraph 13 as under:
“13. It will be seen that there cannot be any dispute on the question that
this is a summary remedy and order of eviction, even if passed, is subject
to the result of a civil suit, and thus, even if summary eviction is ordered,
the right of a party to get his right established in a civil court is not
barred. Indeed, it has been held that one of the conditions attached for
the exercise of powers under section 120 is that in case any doubt arises
about the title of the party, the power is not to be exercised and in case
any complicated question of fact and law arises, the matter has to be
referred to the civil court or the parties can be left to take recourse to any
other remedy that may be available. Even in Kashiram's case (cited supra),
it has been clearly laid down as observed earlier that the relief granted
will of this be subject to the result of the suit.”
52. It further held that normally it will not be advisable for the
Collector to exercise this power in respect of a matter about which a
party has already resorted to civil suit.
53. The decision does not lay down an absolute proposition of law
that the jurisdiction of the authorities under the Tenancy Act is barred
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but holds that the relief granted will always be subject to the result of
the Suit. It needs to be noted that the decision of Mohan Lal vs Kartar
Singh And Others (supra) is subsequent decision of the Hon’ble Apex
Court, which will bind this Court. The Hon’ble Apex Court has held that
the power under section 43 of PEPSU comprehends enquiry not only of
simple nature but also enquiry involving complicated questions having
bearing on nature of possession. The other distinguishing feature is that
in Dhondba Raoji Jadhao vs Krishnabai Gopalrao Raje And Another
(supra), the parties had already resorted to civil suit.
54. The Learned Member of MRT vide orders dated 24
th
June, 2013
and 1
st
February, 2019 had set aside the orders of SDO rejecting the
applications under Section 84(c) and had remanded the matter s
upholding the jurisdiction of SDO and that pendency of civil suit would
not create impediment in deciding the said applications. The said orders
were rightly passed by MRT in light of the principles laid down by the
Hon’ble Apex Court in Mohan Lal vs Kartar Singh And Others (supra). In
the third round, the Learned Member of MRT has taken a completely
di�erent stand and held that SDO did not have the jurisdiction in view
of pendency of the civil suit and the counter claim.
55. In light of discussion above, the impugned order of Learned
Member of MRT setting aside the order of SDO dated 15
th
January, 2020
is clearly unsustainable. The SDO has rightly exercised the jurisdiction
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under Section 84 (c) of Tenancy Act and ordered eviction and perversity
in order of SDO is demonstrated. Resultantly, the impugned order
dated 26
th
September, 2022 is hereby quashed and set aside and the
order of SDO dated 15
th
January, 2020 is restored. Petition succeeds
and Rule is made absolute.
56. Interim Application does not survive for consideration and stands
disposed of.
(SHARMILA U. DESHMUKH, J.)
57. At this stage, request is made for stay of the present judgment
for a period of four weeks. The said request is opposed by Mr.
Walawalkar appearing on behalf of the Petitioners. As the Civil Suit is
also pending, the present judgment is stayed for a period of four weeks.
(SHARMILA U. DESHMUKH, J.)
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