Indian Kanoon - Search engine for Indian Law

69. The matter went to the High Court on a decision given by the Tribunal which held that an application for a negative declaration that the opponent was (sic) a sub-tenant cannot be entertained under the provisions of the Tenancy Act. The correctness of that decision was challenged before the High Court. It was contended before the High Court that the Tribunal's decision was wrong when it held that a negative declaration could not be granted. It was contended on behalf of the petitioner that the application for such a declaration fell within Section 70 (b) of the Act and the Tribunal ought to have held that it had jurisdiction to decide whether the defendant was or was not a tenant under Section 70 (b) of the Act. This contention was negatived by their Lordships. The reason given by their Lordships was that the petitioner was in possession of the suit lands and therefore he could not have made an application under Section 29 of the Act for possession and claimed the relief. At the same time, a declaration of the type asked for fell within the scope of Section 42 of the Specific Relief Act and since no application could be made by the petitioner under Section 29 of the Act, it was not competent for the petitioner-landlord to ask for a declaration that his opponent was not a tenant. In other words, according to their Lordships, it is only when an application is made under Section 29 and the question is raised and a declaration is sought that such a declaration could be given and in no other circumstances could such a declaration be given.

2. Another argument is provided by the provisions contained in Section 85A of the Act. This section was added to the Act by an amending Act of 1955 and has already been quoted at page 21 of this order. This section has a history of its own. In the case in 56 Bom LR 663 : (AIR 1954 Born 100), Gajendragadkar J. indicated a procedure when a dispute arises in a civil Court as to whether the defendant is or is not a tenant and such a dispute is to be determined by the Mamlatdar in his exclusive jurisdiction, then the civil Court should not dismiss the suit but stay the suit and refer the issues to the Mamlatdar for decision. That decision was given in 1952. At that time, there was no provision regarding the procedure. The Legislature therefore thought it necessary to amend the Act for providing a procedure to be followed by the Mamlatdar on a reference made to him by a Civil Court. Hence an issue which is exclusively triable by the Mamlatdar can be tried by him either on a reference made by a civil Court or in proceedings started before him. The reason given by Dixit J. in declining to give the declaration asked for by the petitioner therein was that there was no application made by the petitioner under Section 29 of the Act and, therefore, he could not get any relief. The Full Bench pointed out that if the Mamlatdar had jurisdiction to decide the question after it arose in the civil Court, he would also have jurisdiction to decide it before it arose in the Civil Court. As I have already pointed out, it was consistently held by the Court that when an application is made for a declaration that he is a tenant, it is open for the Mamlatdar to declare that he is either a tenant or not. I may, at the risk of repetition, refer to the decision of Chagla C. J. in wherein he has stated that when the Legislature has left it to the Mamlatdar to decide the issue whether the defendant is a protected tenant or not, it implies that he must decide that the defendant is not a trespasser in order to hold that he is a tenant or a protected tenant and he must also hold that he is a trespasser in order to determine that he is not a tenant or a protected tenant. I need not here again refer to the decision of this Court in 1959-37 Mys. LJ 626 where it has been stated that if the Mamlatdar could give a positive declaration, he could as well give a negative declaration, they being two facets of the same question. Thus the jurisdiction to decide whether a person is or is not a tenant vests exclusively in the Mamlatdar under Section 70 (b) of the Act and the civil Court is not competent to decide it.

84. Yet one more reason which appears to me very cogent as to why it should be held that the Mamlatdar is competent to give a negative declaration is this. Under Section 42 of the Specific Relief Act, any person entitled to any legal character may institute a suit against any person denying his title to such character, and the Court may in its discretion make therein a declaration that he is so entitled. Therefore if we were to hold that the Mamlatdar is not competent to give a negative declaration, then it is perfectly open for the plaintiff to go to a civil Court and ask for the relief under Section 42 and get a declaration that his opponent is a trespasser. The opponent in a proceeding before the Mamlatdar gets a declaration that he is a tenant because that matter is exclusively in his jurisdiction. Then there will be two conflicting decisions and it would not be safe to leave the litigant in doubt with two conflicting decisions. The Courts are there to resolve the conflicts and not to create them, and if it is possible for a Court to so interpret a section as not to create a conflict, it should do so. Further the lower Court or the authority concerned would be in difficulty as to which of the decisions is to be respected or implemented. Such a situation is hardly desirable in the administration of justice.

86. These observations of Chagla C. J. came for consideration by this Court in 1959-37 Mys LJ 626 and this Court held that the approach in connection with the interpretation of the words "for the purposes of this Act" appearing in Section 32 of the Mysore Tenancy Act was not the correct approach to make. According to this Court, the words "for the purposes of this Act" should not, be given a wider meaning so as to confer jurisdiction on the Tribunal in regard to matters which are not covered by the Act. It is only in regard to that aspect of the case this Court held that it is not a correct approach to make. But this Court has also held, as I stated earlier, that it is competent for the Mamlatdar, while deciding whether a person is a tenant, to decide that he is not a tenant, the same being two facets of the same question. Therefore if the Mamlatdar can give a positive declaration, there seems to be no reason why he should not give a negative declaration; such a construction would lead to the avoidance of a conflict which would otherwise be created by holding that the Mamlatdar is not competent to give a negative declaration. I may state here that the judgment of Chagla C. J. in was considered by another Division Bench of this Court consisting of Somnath Iyer and Malimath JJ., in Anna Patel Ajmoddin Patel v. Basappa Bhagappa, (1958) 36 Mys LJ 622 and their Lordships held that that decision correctly lays down the law. Thus the observations of Chagla C. J. were approved by a Division Bench of this Court. In my view, this is a very cogent reason which should lead to the conclusion that the Mamlatdar is competent to give a negative declaration.