Bombay High Court
Dattaram A. Arolkar & Others vs The Mamlatdar Of Mormugao & Others on 13 June, 2000
Equivalent citations: AIR2001BOM74, 2000(4)BOMCR669
Author: F.I. Rebello
Bench: F.I. Rebello, V.C. Daga
ORDER F.I. Rebello, J.
1. As the issue involved in the Letters Patent Appeal involves an important question of interpretation of section 7-A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, (hereinafter referred to as the "Tenancy Act"), apart from Counsel appearing in the present Letters Patent Appeal, Counsel appearing in Letters Patent Appeal No. 9/99 were also allowed to address the Court on the issue of law.
2. The Companion Letters Patent Appeal No. 9/99 wherein the same issue arose, was also tagged alongwith this Letters Patent Appeal which has been heard. However, it seems that during the pendency of the proceedings, one of the respondents has expired. In the light of that, the said Letters Patent Appeal has to be heard separately after the Legal Representatives are brought on record. However, since the issue of law was common, Counsel appearing in Letters Patent Appeal No. 9/99 were also heard while disposing of the present Letters Patent Appeal.
3. Brief facts may be necessary to be stated before formulating the issue that will arise for determination in the present Letters Patent Appeal.
The appellants herein were the original applicants before the Mamlatdar of Mormugao. By their application they set out that they had purchased the suit property by joint Sale Deed dated 11th July, 1995. The sale had been registered. It was their contention that the name of one Usno Pandu Naik was wrongly appearing in the column of tenant. They desired to correct the survey record. They, therefore, prayed to declare the late Usno Pandu Naik alias Vishnu Pandu Naik, all the opponents/his Legal Representatives, as not tenants in respect of Survey No. 242 sub-divisions 1 and 3, prior to the coming into force of the Fifth Amendment to the Tenancy Act and even subsequently. The respondents No. 4 and 5 herein, who were the original opponents, filed a written statement. They raised various preliminary objections. The first was that the appellants herein had no locus standi as the Sale Deed was null and void, having been executed in violation of section 13-A of the Tenancy Act. Secondly, the Court would have no jurisdiction to entertain the application, after the passing of the fifth amendment, the dispute according to the respondents No. 4 and 5 was of a civil nature. Thirdly, it was contended that the Mamlatdar had no jurisdiction to grant reliefs to the applicants/appellants herein.
4. By order dated 5th April, 1994, the Mamlatdar formulated the objections raised by respondents No. 4 and 5 as he understood them. The Mamlatdar rejected the objection that the Court had no jurisdiction. The Mamlatdar further directed that in these circumstances, the matter be proceeded with further. An appeal came to be preferred against the said Order. By order dated 17th April, 1995, the Appellate Authority allowed the appeal and reversed the order of the Mamlatdar. A revision came to be preferred against the said order. By judgment dated 7th July, 1997, the Administrative Tribunal held that a judgment of a learned Single Judge of this Court in Smt. Sitabai Ramchandra Vaze v. Administrative Tribune & others, decided on 10th October, 1996 in Writ Petition No. 306/96, would not be attracted. The learned Tribunal relied on a Full Bench judgment of this Court in the case of Rajaram Totaram Patel v. Mahipat Mahadu Patel & others, , decided under the provisions of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as the "Bombay Tenancy Act"). Some other judgments were referred to. Consequent thereto the Tribunal allowed the revision application, set aside the order of the Appellate Authority and directed the parties to appear before the Mamlatdar. This order came to be impugned by way of a writ petition, being Writ Petition No. 407/97.
5. Before the learned Single Judge the correctness of the view taken in Smt. Sitabai Vaze case (supra), was in issue. It was contended that the said judgment was passed without taking into consideration the judgments of the Full Bench of this Court in the cases of Nivrutti Laxman Kondobahiri v. Shivdayal Laxminarayan Sarda & others, A.I.R. 1960 Bom. 56 and Rajaram Totaram Patel (supra), both decisions rendered under the Bombay Tenancy Act. Before the learned Judge the specific issue for determination and framed was as under :---
"Whether a Mamlatdar acting under the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called as the said Act) is empowered to entertain an application for negative declaration to the effect that the opponent is not a tenant under the said Act."
6. On consideration of the provisions of the Bombay Tenancy Act and the various judgments cited before him, the learned Single Judge held that the Mamlatdar would have no jurisdiction to grant a negative declaration that the opponent is not a tenant under the said Act. In view of that the learned Judge set aside the order of the Administrative Tribunal.
7. In the present Letters Patent appeal this very issue as formulated earlier is in issue. It may be mentioned that the judgment in Smt. Sitabai Vaze (supra) was delivered by one of us (Rebello, J.). Extensive arguments have been advanced both on behalf of the appellant's Counsel who had intervened and on behalf of the respondents' Counsel, who had intervened.
The sum and substance of the arguments advanced on behalf of the appellants is that there is similarity of language between section 7 of the Tenancy Act and section 70(b) of the Bombay Tenancy Act. Similarly, it is pointed out that there is similarity of language insofar as section 58(2) of the Tenancy Act and section 85 of the Bombay Tenancy Act are concerned. Both the sections deal with ouster of jurisdiction of the Civil Court in respect of matters which have to be settled, decided, or dealt with by the authorities under the Act. Learned Counsel for that purpose have elaborately taken us through the two Full Bench judgments cited earlier. Reference is also made to a judgment of Chagla C.J., in Trimbak Sopana v. Gangaram Mhatarba, , to the observations of another Division Bench of this Court while considering section 8-A of the Goa, Daman and Diu Mundkars (Protection From Eviction) Act, 1975, in the case of Smt. Gulabi Sangtu Devidas & others v. Smt. Prema Govinda Gauncar & others, .
Counsel for the respondents have contended that on a reading of the provisions of the Tenancy Act, it was clear that the Act has conferred certain rights on the tenants, conferred certain rights on landlords under the Act and provided a mechanism for deciding and settling disputes and/or granting reliefs under the Act. Issues which have to be decided or settled under the Act it is contended, are specifically excluded from the jurisdiction of the Civil Court such as when the real relief is that such a person is either a tranpasser or having some other status, but not that of a tenant. The issue whether a person is not a tenant would be an issue within the exclusive realm of the Civil Court as that issue will not be a question to be decided under section 7-A of the Tenancy Act. It is further pointed out that there are material differences between the provisions of the Tenancy Act and the Bombay Tenancy Act. In these circumstances even though the Bombay Tenancy Act may be a cognate legislation, none the less, the provisions of the Act not being pari materia, reliance cannot be placed on the judgments rendered under the Bombay Tenancy Act. It is then contended that it is the pleas in the pleadings that will confer jurisdiction. Under section 7 of the Tenancy Act the Mamlatdar is enjoined to decide the question whether a person is a tenant or was a tenant or should be deemed to be a tenant. It is contended that this will arise if a question arises. The question may arise in a civil suit where eviction is sought and the defendant raised a plea that he is a tenant. The question may arise whether a person is a deemed tenant under section 4 or section 5 of the Tenancy Act. This it is contended, can only be if a person question in legal status of a tenant. Section 7 is couched in a positive language. On that count also, it is contended that the Mamlatdar would have no jurisdiction. Thirdly, it is contended that there cannot be multiplicity of proceedings. The Act must be so read that a person could get relief before a single forum. If the plea is accepted that the Mamlatdar can give a negative declaration what follows is that in a case where possession has to be sought or injunction obtained, other proceedings would have to be initiated, one before the Mamlatdar and the other in the Civil Court. Courts, it is contended, must avoid multiplicity. Whereas the Civil Court under section 9 of the Tenancy Act can decide all issues, the Mamlatdar a creation of statute, can only check those questions in respect of which power has been conferred. It is contended that the Act itself contemplates cases where negative declaration can be given as in the case of section 4 of the Tenancy Act. Once the Legislature itself has conferred powers on the Mamlatdar to grant negative declaration in some cases, it must follow that jurisdiction is ousted in other cases. It is contended that it is apparent that it was the intention of the Legislature to limit the grant of negative declarations. If the intention of the Legislature, was otherwise, the Legislature could have so also provided for negative declaration in the other sections or could have avoided conferring such a power under section 4. It is a cardinal rule of interpretation, it is contended, to give effect to the language of the Act and the intention of the Legislature. Apart from that, it is contended that in the instant case, on facts, a purchase certificate has already been issued in favour of the respondents No. 4 and 5. Under these circumstances also, it is contended that the present Letters Patent Appeal must be dismissed.
8. With the above, we may now consider the language of the Tenancy Act to find out whether under section 7 of the Tenancy Act, the Mamlatdar has jurisdiction to grant a negative declaration. Section 7 of the Tenancy Act reads as under :---
"Section? : Question of tenancy---
If any question arises whether any person is or was a tenant or should be deemed to be a tenant under this Act the Mamlatdar shall, after holding an inquiry, decide such question.
In any such an enquiry, the Mamlatdar shall presume that any statement as to the existence of a right of tenancy in a record of rights prepared in the prescribed manner under and in accordance with the provisions of this Act, is true."
We may also refer to the following definitions in section 2 of the Tenancy Act : ---
"Section 2(12) : "Landlord" means a person from whom a tenant holds land on lease.
Section 2(13) : "Lease' means a transfer of a right to enjoy land, made orally or in writing, for a specified, or unspecified period, and in consideration of rent.
Section 2(22) : "Tenancy" means the relationship of landlord and tenant.
Section 2(23) : "Tenant" means a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act."
9. A perusal of these definitions will indicate that apart from a person holding lease on land, the definition of "tenant" includes a person who is deemed to be a tenant under this Act. This is material as under section 4 of the Act, even if the land was not held on lease, if a person was lawfully cultivating the land on or after 1st July, 1962, and before the commencement of this Act, that is 8th February, 1965, such a person is also deemed to be a tenant. Similarly, the section provides that if there were sub-tenants between the said dates, the said sub-tenants become deemed tenants excluding the tenants. The other relevant provisions which need to be quoted are section 4 and section 58(2) of the Tenancy Act. They read as under ---
"Section 4. Persons deemed to be tenants.---
A person lawfully cultivating any land belonging to another person (hereinafter in this section referred to as the owner) on or after 1st of July, 1962 but before the commencement of this Act, shall be deemed to be a tenant if such land is not cultivated; personally by the owner and if such person is not ---
(i) a member of the owner's family, or
(ii) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or of any member of the owner's family, or
(iii) a mortgagee in possession :
Provided that if upon an application made by the landlord within one year from the commencement of this Act to the Mamlatdar within whose jurisdiction the land is situated :---
(a) the Mamlatdar declares that such person is not a tenant and his decision is not reversed on appeal or revision, or
(b) the Mamlatdar refuses to make such declaration but his decision is reversed on appeal or revision, such person shall not be deemed to be a tenant under this section :
Provided further that a sub-tenant cultivating any land belonging to another person on or after the 1st July, 1962 but before the commencement of this Act shall, notwithstanding the fact that the creation of the subtenancy might have been prohibited by any law for the time being in force, be deemed to be lawfully cultivating the land as a tenant for the purposes of this section; and in such cases, the intermediary tenant or tenants prior to the creation of the sub-tenancy shall not be deemed to be tenant or tenants for the purposes of this Act :
Provided further that in the case of a person claiming to be a tenant on the ground that he was a sub-tenant cultivating any land after the 1st July, 1962, but before the commencement of this Act, the application by the landlord for a declaration that such person is not a tenant may be made within three months of the commencement of the Goa, Daman and Diu Agricultural Tenancy (Amendment) Act, 1966."
"Section 58(2) :
Save as provided in this Act, no Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar, Tribunal, Collector or Government, and no order passed by these authorities under this Act shall be questioned in any Civil or Criminal Court."
10. Before I deal with the language of the Act, it may be necessary to consider the tests laid down to the extent to which the jurisdiction of a Civil Court is ousted. Under section 9 of the Code of Civil Procedure, a Civil Court is competent to decide all issues unless jurisdiction is barred expressly or impliedly. When can jurisdiction be said to be excluded, or barred expressly or impliedly? The matter is no longer res integra. The tests have been laid down in a large number of judgments. Suffice if reference is made to the case of Dhulabhai v. State of Madhya Pradesh, . The material tests for ouster of jurisdiction amongst others are as under :---
"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provisions, however, do not exclude those cases where the provisions of the particular Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure;
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunal so constituted and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not."
The same propositions have thereafter also been laid down in the judgment of the Apex Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & others, .
11. On the above touchstone, let us consider whether on the express language of the sections it is possible to construe and/or hold that the Mamlatdar would have jurisdiction to grant a negative declaration. As pointed out, the entire thrust is that if any question arises whether any person is or was a tenant, or should be deemed to be a tenant under the Act, the Mamlatdar shall, after holding enquiry, decide such question. A plain look at the language therefore, will lend support to the construction sought to be raised on behalf of the appellants that a negative declaration is also contemplated under section 7 of the Tenancy Act. It is also contended that if a positive declaration can be granted there should be no difficulty in granting a negative declaration. It is pointed out that in the event a suit is filed and an issue is framed and remitted to the Mamlatdar while deciding the said issue has also to decide whether a person is or not a tenant. If the Mamlatdar can embark upon such an enquiry on an issue being decided by it, which was framed before a Civil Court, there can be no difficulty in independently considering an application for deciding whether a person is not a tenant or a deemed tenant. The exercise, it is contended would be the same. The language also so reads. Comparison is made to the language of section 70(b) of the Bombay Tenancy Act. Section 70 of the Bombay Tenancy Act reads as under :---
"Section 70. Duties of the Mamlatdar---
For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar :---
(a) to decide whether a person is an agriculturist;
(b) to decide whether a person is, or was at any time in the past, a tenant or a protected tenant or a permanent tenant.
..........................................".
It is also pointed out that the wording of section 85 of the Bombay Tenancy Act is similar to section 58(2) of the Tenancy Act. Section 85 reads as under :
"Section 85. Bar of jurisdiction---
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question (including a question whether a person is or was at the time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation:---For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar Courts Act, 1906."
The language it is contended is in pan materia. Section 70(b) and section 85 have been construed by the two Full Benches of this Court, which have accepted the principle that the Mamlatdar had jurisdiction as contended on behalf of the appellants to grant a negative declaration.
It will, therefore, be essential to consider what has been decided by the Full Benches of this Court and whether in view of the law as expounded in the judgment of the Full Benches the same should, be followed also while interpreting the Tenancy Act.
12. In Nivrutti Laxman Kondobahiri (supra), the very issue which was in issue before this Court was in issue. After considering the language of the section, the Full Bench noted that the Mamlatdar can decide the question after it arises in the proceedings or in some other proceedings under the Tenancy Act. This was in the context of an issue arising before the Civil Court. The Full Bench noted that if the Mamlatdar has jurisdiction to decide the question, after it arises in the Civil Court, he will also have jurisdiction to decide it before it arises in the Civil Court. The Court also noted that the Act contains no provision under which the exercise of jurisdiction of the Mamlatdar is made dependent upon the issue arising in the Civil Court, or in some other proceedings under the Act. Therefore, it may be noted that the Full Bench took the view that it took, on the express construction of section 70(b) of the Bombay Tenancy Act and noting also, that the Act itself had not provided the stage or a provision for the exercise of jurisdiction by the Mamlatdar. The exercise of jurisdiction was not made dependent on the issue arising in the suit or some other proceedings.
13. In Kajaram T. Patel (supra), the issue before the Full Bench was on the dispute arising between two tenants. In that case a civil suit was filed. The plaintiff contended that he alongwith the defendants were co-tenants. The defendant on the other hand, contended that he was the sole tenant. An issue came to be framed as to whether the Civil Court has jurisdiction in view of the provisions of sections 70 and 85 of the Bombay Tenancy Act. The Court held that such an issue between two tenants would not fall within section 70(b) of the Bombay Tenancy Act and that the Civil Court would have jurisdiction to decide the issue. The Full Bench then noted the Full Bench judgment in the case of Nivrutti Laxman Kondobahiri (supra) and held that even a dispute between two tenants would be referable and decided by the Mamlatdar. There can be no difficulty in accepting the said contention as the issue would be between persons who are claiming rights under the Act against a common landlord.
14. Next reliance was sought to be placed on the judgment in the case of Trimbak Sopana v. Gangaram Mhatarba (supra) and certain observations regarding ouster of jurisdiction of a Civil Court considering the language of the Bombay Tenancy Act and the Bombay Rent Act. A civil suit was filed for eviction of the defendant on the ground that he was a trespasser. A plea was raised that he was a protected tenant. The trial Court took the view that an issue would arise, which had to be decided under section 70(b) by the Mamlatdar and that the Civil Court had no jurisdiction. He therefore directed the plaintiff to present the suit to the proper Court. In appeal, the Assistant Judge held that the Court had jurisdiction to decide whether the defendant was a tenant or a trespasser and remanded the matter. That is how the matter reached the High Court. It was argued that the suit against a trespasser is cognizable by the Civil Court and if an issue arises whether the defendant is a trespasser or a protected tenant the issue has to be decided by the Civil Court. This contention was negated considering the language of section 70(b) and section 85. While so holding, the Court made a reference to the jurisdiction of the Small Causes Court and the Mamlatdar under the Tenancy Act. The Court also noted that if the view taken was not taken, there would be serious difficulties inasmuch as the Civil Court and the Mamlatdar would give conflicting judgments and in order to avoid such a conflict, the Bombay Tenancy Act has ousted the jurisdiction of the Civil Court to decide whether a defendant is a protected tenant or not. It may be noted that the question arose on a civil suit being filed in a Civil Court.
15. In Smt. Gulabi Angtu Devidas & others (supra) the issue before the Division Bench of this Court arose while considering the language of section 29 and section 8-A of the Goa, Daman and Diu Mundkars (Protection From Eviction) Act, 1975 (hereinafter referred to as the "said Act".). It was sought to be contended that if the matter had to be decided under section 29 of the said Act, then no application would lie under section 8-A of the said Act. The matter arose thus. An application was filed for entering the applicant's name as mundkar in the register to be maintained under section 29 of the said Act. The application was dismissed. Instead of preferring an appeal, the applicant filed an application under section 8-A of the said Act before the Mamlatdar for a declaration that he was a mundkar. That application was resisted on the ground that the Mamlatdar had no jurisdiction after the application under section 29 was dismissed on merits. The application was dismissed. An appeal preferred was also dismissed. In revision, the order was set aside and the matter was remanded for disposal on merits. The order came to be challenged before this Court. The order of the Tribunal was set aside. A learned Judge held that dismissal of an application under section 29 prohibits institution of proceedings under section 8-A of the said Act. The issue before the Division Bench in Letters Patent Appeal was that there was a bar in maintaining such an application. On consideration of the language, the Court held that even if the application for entertaining application under section 29 of the said Act was dismissed, that would not preclude an application for declaration under section 8 of the said Act. While so deciding the Division Bench noted the language of section 8 of the said Act and has noted that the section enables a party to seek a declaration of right of mundkarship, or a negative declaration that a person in occupation is not a mundkar. The issue which arises in this case was not directly in issue. Those observations were made in the context where a fresh application could be maintainable. The issue whether a Mamlatdar under the Mundkar Act could give a negative declaration was not in issue. Those observations, therefore, cannot be said to be the ratio of the judgment.
Reference was also made to a judgment in the case of Vallabbhai Nathabhai v. Bai jivi & others, . In that case a tenant had surrendered possession of the land without following the procedure under the law. The tenant thereafter filed an application for being put back in possession under section 29 of the Bombay Tenancy Act. Apart from section 29 of the Bombay Tenancy Act there was another provision, namely section 84 of the Bombay Tenancy Act, for returning possession to a tenant, who had been dispossessed. The issue before the Apex Court was the applicability of section 29 and section 84 of the Bombay Tenancy Act To my mind, that judgment can be of no assistance in deciding the issue that has arisen herein.
In Mela Kabhai v. Motibhai Kahadas Patel, 1958(60) Bom.L.R. 1071, the issue before the Court was whether the Mamlatdar is competent to entertain and decide ah application for declaration whether a person is or is not a tenant. We need not dwell on that issue as, in our opinion, it is covered by the Full Bench judgment.
16. Therefore, can it be said that the view taken by the Full bench should be the view also to be adopted while considering section 7 of the Tenancy Act? As set out earlier, unless it is shown specifically that the jurisdiction of the Civil Court is outsted, a Civil Court will retain jurisdiction to decide the issue. Therefore, let us examine whether under the Tenancy Act the jurisdiction of the Civil Court is ousted. While deciding the issue of granting the relief of a negative declaration it must necessarily be held that it would be the Mamlatdar alone who would have jurisdiction. As noted earlier by Chagla, C.J., in the case of Trimbak Sopana (supra), the entire purpose in ousting the jurisdiction of the Civil Court is to avoid conflict of decisions.
Let us therefore examine the scheme of the Act. By virtue of the Tenancy Act, lessees of agricultural lands who were holding land as tenants after 19th December, 1961, but before 1st July, 1962, were deemed to be tenants if they were not one of those set out under section 5 of the Tenancy Act. Under section 4 of the Tenancy Act, a person lawfully cultivating land of another person after 1st July, 1962, but before 8th February, 1965, was deemed to be a tenant. Reading sections 2(23) and 8 of the Tenancy Act, tenancies created after the coming into force of the Tenancy Act are also governed by the provisions of the Tenancy Act. The definition of "landlord" and "tenant" contemplates a deemed tenant, as also a person after the date of commencement holds lands on lease who and cultivates it personally. Such tenants could not be evicted except on grounds contained under section 11 of the Act. When termination was for non-payment of rent, there were specific provisions provided by section 12. By virtue of section 13-A, if the landlord intended to sell the land, the tenant had the right to purchase the land. Other rights were also conferred on the tenant including right for restoration of possession. On the other hand, insofar as the landlord is concerned, his right to terminate were subject to section 11 of the Tenancy Act. Restrictions were also imposed under section 12 of the Tenancy Act. Similarly, there were some other provisions conferring certain rights on the tenants and the landlords. Most importantly, under section 4 of the Tenancy Act, if a person was claiming to be a deemed tenant, an application could be made by the landlord for a declaration that such person was not a tenant. Similarly, negative declaration was contemplated in the case of a sub-tenant.
When does a question arise for a Mamlatdar to decide under section 7 of the Tenancy Act. Where does it arise and if it so arises, which is the Court of competent jurisdiction. As noted earlier, the construction of the language of the Bombay Tenancy Act is that the Mamlatdar has jurisdiction to grant both negative and positive declarations. That is construed from the language of section 70(b). Section 70, which is reproduced earlier, speaks about the duties of the Mamlatdar, which has been held to include the duty to decide whether a person is or was at any time in the past, a tenant, etc. Ordinarily, all questions can be decided by a Civil Court. In the Bombay Tenancy Act, the language is construed on account of the duty cast on the Mamlatdar to decide whether a person is or is not a tenant. The language in the Tenancy Act is, "if any question arises". The question can only arise if a person is a tenant or a deemed tenant and that is denied. If a person is not claiming to be tenant or a deemed tenant can a party approach the Mamlatdar for a decision and will that be an issue to be decided by the Mamlatdar? Section 58(2) of the Tenancy Act contemplates that no Civil Court will have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, dealt with or decided by the Mamlatdar. The question to be decided, settled or dealt with is whether a person is claiming to be a tenant or a deemed tenant. On a claim by a person can a decision on that issue be pre-empted by another who claims that he is not the tenant? If the issue arose of either a positive or negative declaration before the Civil Court there would be no difficulty unless the jurisdiction was ousted. When such an issue arises before the Civil Court the issue arises whether a person is or is not a tenant. The Civil Court will cease to have jurisdiction on that issue. This has an important bearing as it deals with the forum to decide the issue. If a person is not a tenant, then will the jurisdiction of a Civil Court be barred? Section 58(2) of the Tenancy Act bars the jurisdiction of the Civil Court in respect of only those issues which have to be decided by the Mamlatdar under the Act. Therefore, a landlord who contends that a person is not his tenant would be contending that such a person is either a trespasser or has some other right. The issue to be decided in such a case is the other legal status, if any. The issue will not be whether a person is not a tenant. Such other legal issue can be decided by the Civil Court as its jurisdiction is not ousted. Such an issue is not also an issue to be decided exclusively by the Mamlatdar. Merely calling the relief as a negative declaration will not suffice. Jurisdiction of the Civil Court in such matters will not be ousted. If section 58(2) does not bar or oust this jurisdiction, then a civil suit would be maintainable. If a civil suit is maintainable, will there be a concurrent jurisdiction in both in the Civil Court and the Mamlatdar to decide the issue? Before the Civil Court an issue may arise whether on a plea in a defence that a person is a tenant, it would be referable to the Mamlatdar. Independently a person can also apply to the Mamlatdar if the question arises. At whose instance will the issue arise before the Mamlatdar? In our respectful submission, it would only arise if the parties who go before the Mamlatdar proceed on the footing that the person is a tenant or a deemed tenant. Firstly the Mamlatdar is a tribunal of limited jurisdiction. Secondly, Tenancy Act itself contemplates that a negative declaration can be given by the Mamlatdar in an application under section 4. This would contemplate that the legislature expressly conferred power on the Mamlatdar to grant a negative declaration in limited cases. If section 7 of the Tenancy Act was all embracing and the Mamlatdar could decide the issue of both positive and negative declarations, there would be no need to provide for negative declaration under section 4. No part of the Act or, for that matter language of a statute, can be said to be otiose. That is a cardinal principle of interpretation. It is the duty of the Court to give effect to the intendment of the legislature. Once the legislature has expressly provided for grant of negative declaration in limited cases, it would contemplate ouster of jurisdiction in matters other than section 4. This would also be a harmonious construction as the jurisdiction of the Civil Court would not be ousted and there would be no conflicting judgments. The language of the Tenancy Act therefore, contemplates that no negative declaration can be granted by the Mamlatdar. Of course when the issue arises before the Mamlatdar he can always decide whether the person who claims the right has so proved or not. This is the jurisdiction inherent in deciding an issue. That does not mean that because the Mamlatdar could decide the issue either on a reference by a Civil Court or on application before him, he can assum jurisdiction not vested in him.
17. The learned Single Judge has noted the language of the Bombay Tenancy Act as well as the Tenancy Act. In our opinion, apart from what has been set out by the learned Single Judge, the language of section 4 itself leads also to the same conclusion. Such provisions are not contained in the Bombay Tenancy Act. Therefore, even if the language of section 7 seems to be in para materia with the language of section 70(b) and for that matter section 85 with section 58(2), none-the-less, there is no provision like section 4 in the Bombay Tenancy Act. The definition as contained of "landlord" is also missing from the Bombay Tenancy Act, which contemplates land-holder and landlord in the context in which it is used. In our respectful opinion, considering the scheme of the Tenancy Act, the Bombay Tenancy Act and the language in use, the construction given to the Bombay Tenancy Act by the Full Bench cannot be adopted insofar as the Tenancy Act is concerned. It is true that they are cognate legislations, but as the Apex Court has observed, merely because they are cognate legislations it must not necessarily result in construing the language based on the said cognate legislation. Reference for that purpose need be made to the judgement in Nathia Agarwalla & another v. Jahanara Begum & others, .
On a conspoctun of what has been stated, above we feel that no interference need be called for in the judgment of the learned Single Judge considering the language of section 7 of the Tenancy Act.
18. It may be noted that learned Counsel had sought to contend that there are subsequent events like the issue of purchase certificate which must necessitate dismissal of the appeal. We do not propose to go into that issue as, in the meantime, the appellants themselves have filed a civil suit. Whatever issues will arise will have to be decided in the civil suit. Having said so, the Letters Patent Appeal stands dismissed.
19. In the circumstances of the case, there shall be no order as to costs.
20. Appeal dismissed.