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After examining the several provisions of the Orissa Protection of Tenants Act, 1948, their Lordships held that the jurisdiction of the Civil Court is not excluded. In arriving at this conclusion, their Lordships took into consideration the fact that generally such Tribunals do not possess the necessary equipment and training to adjudicate civil rights of parties. Their Lordships observed in the course of their judgment as follows :

"As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector, the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry." Bearing this principle in mind, we have to decide whether the jurisdiction of Civil Courts is taken away from them and is vested in the Mamlatdar under the Bombay Tenancy and Agricultural Lands Act either by an express provision or by necessary implication. It cannot be disputed that there is no provision in the Bombay Tenancy and Agricultural Lands Act which specifically confers jurisdiction on the Mamlatdar to grant a declaratory relief to the effect that a particular person is or is not a tenant without any reference to the purpose of the Act. In the absence of any such specific provision, it cannot be reasonably held that the Mamlatdar is competent to grant such a relief, unless by necessary implication of construction of the several provisions of the Act the irresistible conclusion should be to the effect that he has such powers. While conceding that there is no specific provision in the Bombay Act which confers powers of granting a declaratory decree on the Mamlatdar, Mr. Datar for the petitioners contended that a combined reading of Sections 70, 85, 85-A and other provisions of the. Act should lead us to the inescapable conclusion that the Mamlatdar has such power by necessary implication. According to Mr. Datar, the Mamlatdar who has powers under Section 70 of the Act to decide certain questions referred to therein should be deemed to have jurisdiction to give a mere declaratory relief to the effect that a person is or is not a tenant. In support of his contention, he strongly relied upon Sections 85, 85-A and other provisions of the Act. How far this contention that these provisions of the Act by necessary implication confer jurisdiction on the Mamlatdar to give a mere declaration is correct, has been very elaborately dealt with by Hegde, J., in the course of his order. I entirely agree with his reasoning and conclusion and as such I feel that it is not necessary for me to restate them. As observed by the Judicial Committee in Crawford v. Richart Spooner, (1846) 6 Moo PC 1, "The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the intention of the Legislature; we cannot aid the Legislature's defective phrasing of the Act; we cannot add, and mend, and, by construction, make up deficiencies which are left there."

4. The Civil Courts are entitled to refuse to grant a mere declaratory decree where the cases are of such a nature that the decree for all purposes is made ineffective. Thus, the power of the Civil Court to grant merely a declaratory decree under Section 42 of the Specific Relief Act is not absolute and is very much restricted. If the argument of Mr. Datar the learned counsel for the petitioners to the effect that the Mamlatdar is entitled to pass a mere declaratory relief irrespective of the fact whether it is for the purpose of the Act or not is accepted, it would mean that the Mamlatdar can give a declaratory decree without any restriction. He is bound to give such a declaration even though it may be for all purposes ineffective and useless. In my view, we should avoid such a construction as the same leads to inconvenience, absurdity, hardship or injustice, presumably not intended by those who made the law. I cannot usefully add anything more to the exhaustive order of Hegde, J., I agree with him that the answer to the question referred to the Pull Bench should be in the negative.

8. Sri A. V. Albal, who stood for the position that the Mamlatdar cannot grant any declaratory relief strenuously contended that the duties and functions of the Mamlatdar can be performed only while carrying out some "purpose of the Act"; and for finding out the "purpose of the Act" one must look to the remaining provisions in the "Act". According to him, under no circumstance the Mamlatdar can grant a declaratory relief.

9. It may be noted that under Section 85, the Civil Court's jurisdiction to settle, decide or deal with any question is only excluded "if that question is by or under this Act required to be settled, decided or dealt with by the Mamlatdar ........." As observed by the Judicial Committee in AIR 1940 PC 105, the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Construing Section 7 (1) of the Orissa Tenants Protection Act, 1948, the Supreme Court in Civil Appeal No. 92 of 1959 : on its file observed:

15. Those who contend for the view that Section 70 confers powers on the Mamlatdar to give even declaratory reliefs, overlook not only the import of the expression "for the purposes of this Act" found in that section, but they also ignore the fact that a declaratory relief is a discretionary relief, and not a relief which a party is entitled to as of right. It was contended by Sri Datar that one of "the purposes of the Act" is to decide whether a person is a tenant or not. In other words, his contention was that the purposes of the "Act" are those mentioned in Section 70. This view cannot be supported by the language employed in Section 70. There is no justification for straining the language used in that section and placing upon it a construction which cannot be justified either by the rules of grammar or by the canons of construction of statutes. The construction contended for amounts to rewriting of the section by saying "for the purposes mentioned in this section the following shall be the duties and functions to be performed by the Mamlatdar". It must be remembered that that section refers to "for the purposes of this Act" and not "for the purposes mentioned in this section". We must note that the Mamlatdar is constituted as a special Tribunal to decide certain matters arising under the "Act" with a view to implement the provisions of the "Act". He is not constituted as one more Court in the hierarchy of Courts, with exclusive jurisdiction to try all cases in which directly or incidentally disputes enumerated in Section 70 arise for determination whether the same has anything to do with the "purposes of the Act" or not. If the argument advanced by Sri Datar is accepted as sound, it may lead to anamolous positions. Disputes which have nothing to do with the protections granted under the "Act" can by trick of pleading be brought before the Mamlatdar either with a view to prolong the litigation or with a view to take advantage of his unfamiliarity with civil law. If Sri Datar's interpretation is accepted as correct then the flood-gates for speculative litigation would be thrown open. I find it difficult to believe that the Legislature could have intended such a situation to arise. Even the Civil Court's jurisdiction to grant a declaratory relief, despite the fact it possesses wide jurisdiction in the matter of deciding civil disputes, is controlled by the provisions contained in Section 42 of the Specific Relief Act. But, if the contention of Sri Datar is correct, no restrictions are placed on the powers of the Mamlatdar for granting or refusing to grant declarations on the topics mentioned in Section 70. I hesitate to think that anything so drastic would have been contemplated by the Legislature.