REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO.2971 OF 2001

Smt. Madhumati Atchut Parab               ...

Appellant

VERSUS

Shri Rajaram v. Parab & Ors.                ..Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. This  appeal  is  directed  against  the  judgment  and

order  dated  26th of  June,  2000  of  the  Division

Bench of  the  High  Court  of  Bombay  at  Panaji  in

Letters  Patent  Appeal  No.9  of  1999  whereby  the

appeal was dismissed by the High Court based on

the decision passed in Letters Patent Appeal No.44

of 1998 decided on 13th of June, 2000.        

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2. The relevant facts leading to the present appeal

are as follows:

The appellant is the owner of a property called

VAGAD, survey No. 131, sub-division No. 33 and 37

situated at Paliem, Taluka Pernem, Goa, (hereinafter

referred to as “the disputed property”). Three persons

namely Vassu, Shankar and Bhiva were recorded as

tenants  in respect  of  the  disputed property  in  1972

and the present respondents are their heirs and legal

representatives.  The  appellant  applied  before  the

Court of Mamlatdar at Pernem, for a declaration that

the  respondents  were  not  tenants  of  the  disputed

property within the meaning of the Goa, Daman and

Diu  Agricultural  Tenancy  Act,  1964  (in  short  “Goa

Tenancy Act). The Mamlatdar, after a detailed enquiry

into the facts, passed an order on 28th of October 1986

granting  the  aforesaid  declaration  in  respect  of  the

disputed  property.  In  appeal,  the  Deputy  Collector

dismissed  the  same  and  affirmed  the  order  of  the

Mamlatdar,  by  an order  dated  5th of  January 1992.

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Further, an appeal to the Administrative Tribunal was

taken,  which  reversed  the  orders  of  the  Deputy

Collector and the Mamlatdar, by an order dated 30th of

June, 1997 by re-appreciating the evidence on record.

The appellant filed a writ petition being WP No. 113 of

1998,  before  the  High  Court  of  Bombay  at  Panaji,

challenging the order of the Administrative Tribunal.

The Writ  Petition was dismissed on the ground that

under Section 7 of the Goa Tenancy Act, there was no

power  vested  with  the  Mamlatdar  to  grant  negative

declaration. Aggrieved by this judgment, the appellant

filed a Letters Patent Appeal being LPA No. 9 of 1999

before the Division Bench of the High Court. As noted

herein  earlier,  the  same  was  dismissed  vide  its

judgment  dated  26th of  June,  2000.  Thereafter,  the

appellant had filed this special  leave petition in this

Court, which on grant of leave was heard by us in the

presence of the learned counsel appearing on behalf of

the parties.

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3. We have heard the learned counsel appearing on

behalf  of  the parties and examined the materials on

record.  The  issue  which we have  to deal  with while

disposing of this appeal is whether under Section 7 of

the Goa Tenancy Act, the Mamlatdar was vested with

the  authority  to  grant  a  negative  declaration  to  the

effect  that  a  particular  person  is/was  not  a  tenant

when any such dispute is/was referred to him for his

decision.

4. Before  going  into  the  rival  contentions  of  the

parties, it is necessary for us to refer to objects and

reasons for enacting the Goa Tenancy Act.  This Act

has been enacted to provide for the regulation of the

terms of tenancy with respect to agricultural lands in

the Union Territory of Goa, Daman and Diu and for

matters  connected  therewith.   Section  7  of  the  Goa

Tenancy Act reads as under :-

“Section 7: Question of tenancy:- If any question arises whether any person is or was a tenant or should be deemed to be a

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tenant under this Act the Mamlatdar shall, after  holding  an  inquiry,  decide  such question. In any such 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.”

5. As noted hereinearlier, the learned Single Judge

as  well  as  the  Division  Bench  of  the  High  Court

decided  that  the  Mamlatdar  did  not  have  any

jurisdiction  to  grant  a  negative  declaration  following

the ratio of its decision in LPA No. 44 of 1998.  On a

consideration of  the objects  and reasons of  the Goa

Tenancy Act and the relevant provisions of the same,

we are of the view that although Section 7 of the Goa

Tenancy Act provides that where any question arises

whether any person is or should be deemed to be a

tenant, the Mamlatdar shall, after holding an enquiry,

decide  such  question,  even  then,  the  negative

declaration  namely  “such  a  person  is/was  not  a

tenant” should also be dealt with by the Mamlatdar for

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the  reasons  stated  hereinafter.   The  expression  in

Section 7 of the Act as to the determination of the fact

that whether a person “is or was a tenant”, would also

include  the  question  whether  the  person  is  not  a

tenant,  and  after  conducting  an  enquiry  the

Mamlatdar  shall  decide  the  same.   Therefore  the

question, which was raised, is that, if the Mamlatdar

after conducting an enquiry comes to the conclusion

that the concerned person is/was not a tenant, he is

bound  to  mention the  same.  Therefore,  it  does  also

amount to a declaration to the effect that the person is

not  a  tenant.   Accordingly,  it  results  in  a  negative

declaration. It bemuses us that when the wordings in

the section are clear to the effect that the Mamlatdar

has  to  decide  about  the  tenancy  of  a  concerned

person,  the  expression  “If  any  question  arises

whether  any  person  is  or  was  a  tenant…..”  can

purport to have a meaning that the mamlatdar is not

authorized  to  issue  a  negative  declaration  that  the

person is  not  a tenant.   This   expression,  as noted

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herein  earlier  also,  is  clear  that  when  there  is  a

dispute or doubt over the tenancy of a person, then

the  Mamlatdar  shall  decide  such  question  after

conducting  a  due  enquiry  to  establish  the  same.

Therefore,  if  the  conclusion  of  the  Mamlatdar,  on

enquiry, is that a particular person is not a tenant, he

is  bound to declare  such a person that  he is  not a

tenant.  We do not also have any doubt regarding the

expression “is or was tenant” in Section 7 of the Goa

Tenancy  Act   which  would  include  the  positive

declaration as well as the negative declaration. If the

observations made by the Division Bench of the High

Court  are  accepted,  it  would  then  mean  that  if  a

person approaches the Mamlatdar to declare him as a

tenant  or  on  the  application  of  a  landlord  for  a

decision  on  the  tenancy  of  his  occupant,  the

Mamlatdar ultimately reaches to a conclusion that the

concerned person whose tenancy has to be decided is

not  a  tenant,  he  has  to  refrain  from  taking  any

decision and decline to exercise his jurisdiction. Such

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a situation would be unacceptable,  untenable  and a

sheer  waste  of  time  of  the  Mamlatdar  to  conduct  a

detailed enquiry under Section 7 of the Goa Tenancy

Act on the application filed before it.  This, in our view,

cannot  be  the  intention  of  the  Legislature  to  create

such an ambiguous position, which would result in a

lengthy  procedure,  that  might  ultimately  yield  no

result.

6. At the risk of repetition, it is pertinent to mention

that the expression “if any question arises” embraces

within  its  sweep  both  the  facets,  i.e.,  positive

declaration  as  well  as  negative  declaration,  and  the

conclusion  can  be  reached  only  at  the  end  of  the

enquiry. The learned counsel  appearing on behalf  of

the  appellant  contended  that  if  we  examine  the

provision of section 7 of the Goa Tenancy Act and also

Section 70 of the Bombay Tenancy Act,  it  would  be

evident that both the provisions are similar in nature

and are pari-materia to each other. We have already

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quoted  Section  7  of  the  Goa  Tenancy  Act.  It  is,

therefore,  necessary now to reproduce  Section 70 of

the Bombay Tenancy Act which is as follows :-

“Section 70-Duties of the Mamlatdar:- “For the purposes of this Act, the following shall be the duties and the 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… ……..”.

7. In  this  connection,  Section  85  of  the  Bombay

Tenancy Act is also necessary to be produced.  Section

85 of the said Act is as follows:-

“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

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appeal  or  on  revision,  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.”

8. From a bare perusal of Section 85 of the Bombay

Tenancy Act,  it  would be evident that this provision

bars  the jurisdiction of  Civil  Court to 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  would  be  decided  or  dealt  with  only  by  the

Mamlatdar or Tribunal or a Manager, the Collector or

the  Maharashtra  Revenue  Tribunal  in  appeal  or

revision by the State Government in exercise of their

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powers of control. When a question arises whether a

particular person is an agriculturist or a tenant or not,

it is only the Mamlatdar who has the jurisdiction to

decide the same. The question, therefore, is whether

under  Section  70  of  the  Bombay  Tenancy  Act,  the

Mamlatdar  has  the  power  or  jurisdiction  to  grant  a

negative  declaration  that  is  whether  the  concerned

person is or was not a tenant.  In  Nivrutti Laxman

Kondobahiri vs. Shiv Dayal Laxminarayan Sarda &

Ors. [AIR  1960  Bombay  56] (Full  Bench),

Hon.Chainani,  C.J.  (as  His  Lordship  then  was)

observed :-

“It has, however, been urged that while an application may be made to a Mamlatdar for obtaining a declaration that a person  is a tenant  ,   an  application  for  a  negative declaration that a person is not a tenant, is not competent. It has been contended that the object of the Act is to protect tenant and that it confers special rights upon them and that consequently,  where  the  owner  of  a land alleges that person is not a tenant or that he is not entitled to be protection of the Act, the application cannot be said to be one for the purposes of the Act. There does not seem  to  us  to  be  much  force  in  this argument. The purposes of  the Act are, as

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will be seen from the preamble, to regulate the  relations  of  landlords  and  tenants  of agricultural  lands.  While  the  Act  confers extensive  rights  on  tenants,  the  landlords are  not  deprived  of  all  their  rights  –  For instances, they can terminate the tenancies and  resume  possession  of  their  lands  in certain  circumstances.  Under  Section  29, both  the  landlords  and  the  tenants  can apply  to  the  Mamlatdar  for  obtaining possession  of  lands.  Under  clause  (b)  of Section  70  of  the act,  the Mamlatdar  has jurisdiction to determine whether a person is a tenant. He can, therefore, also decide that a person  is not a tenant.  If  he can decide  this  question,  on  an  application made to  him by a tenant,  it is difficult  to understand why he should not be able to decide this question, when the application is made  by the landlord.  In  either  case,  the question which the Mamlatdar will have to determine  is  whether  the  relationship  of landlord  and  tenant  exists  between  the parties.  The  jurisdiction  to  decide  this question vests exclusively in the Mamlatdar and  the  Civil  Court  is  not  competent  to decide it. This question will also have to be determined by reference to and in the light of  the provisions of  the Act as to who are and who are deemed to be tenants and as to  how  and  in  what  circumstances  a tenancy  can  be  terminated.  Such  a determination  will,  therefore,  be  for  the purpose  of  the  Act.  The  words  for  the purpose of this Act, in our opinion, mean for the  purposes  of  deciding  any  question relation to  a matter,  which is regulated or governed by the  provisions of  this  Act. If, therefore,  the  question  raised  before  the

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Mamlatdar relates to a matter,  which is to be decided by reference to the provisions of the Act, its determination by the Mamlatdar will be for the purposes of the Act and it is immaterial  whether  the  application  raising the question is made by the landlord or by the tenant.”   (Emphasis supplied)         

9. Similar was the view expressed by the Bombay

High  Court  relating  to  Section  70  of  the  Bombay

Tenancy  Act  in  the  decision  in  Trimbak Sopan vs.

Ganga  Ram  Mhatarba [AIR  1953  Bombay  241]  in

which the Bombay High Court observed as follows :-

“………….A  very  interesting  argument  has been  advanced  by  Mr.Tarkunde,  and  his contention is that a suit against a trespasser is  only  cognizable  by  the  civil  court,  and therefore, if an issue arises in such a suit as to whether  it is for  the civil  court to decide that issue: if  the defendant is a trespasser, the  Civil  Court  has  jurisdiction  to  pass  a decree for possession; if, on the other hand, the civil court comes to the conclusion that the defendant  is  a  protected  tenant,  then  the Court would have no jurisdiction and the suit would  have  to  be  dismissed  or  sent to the Mamlatdar to dispose of it according of law.

Mr.Tarkunde’s further contention is that it is only to those issues which the Mamlatdar is  required  to  determine  in  a  proceeding

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which should be filed before the Mamlatdar that Section 70(b) has any application……..

………….Now,  if  this  argument  was sound,  really no  occasion  would  ever  arise for the Mamlatdar to decide the issue as to whether a person is a tenant or a protected tenant, because, if a person could only go to the  Mamlatdar  in  those  case  where  he admitted that the defendant was a tenant or a  protected  tenant,  then  the  issue  as  to whether  the  person  was  a  tenant  or  a protected  tenant  would  not  arise.  Such  an issue can only arise when there is a dispute as to the status of the particular person, and it is only when an allegation is made that the person is not a tenant or a protected tenant that the Mamlatdar would be called upon to try such  an issue.  Now, it is  clear that the question whether a person is a tenant or  a protected tenant is not a jurisdictional fact as far  as the Mamlatdar is concerned but is a fact in issue.

The  jurisdiction  of  the  Mamlatdar  does  not depend upon the person being a tenant or a protected  tenant.  On  the  contrary,  the Mamlatdar  himself  has  been  given  the jurisdiction to try the question as to whether a person is a tenant or a protected tenant.

Mr.Tarkunde says that the issue before the civil court is not whether the defendant is a protected  tenant  or  not,  but  the  issue  is whether the defendant is a trespasser or a protected  tenant.  In  my  opinion,  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

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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 agree  with  Mr.Tarkunde  that the provisions in law which oust the jurisdiction of the civil court  must  be  strictly  construed.  But considering it as strictly as I can, looking to the  language  used  by  the  Legislature  in Section 70(b) of the Tenancy Act, and looking to the scheme of the Act, it seems to me clear that all questions with regard to the status of a party, when the party claims the status of a protected tenant, are left to be determined by the Revenue Court, and the jurisdiction of the civil court is ousted…………”  

10. In view of the discussions made hereinabove, we

are, therefore, of the view that under Section 7 of the

Goa Tenancy Act, which is pari-materia with Section

70  of  the  Bombay  Tenancy  Act,  the  Mamlatdar  is

conferred  with  power  to  decide  the  question  after

holding an enquiry whether a particular person is or is

not a tenant of the disputed property.   

11. It  is true that the High Court by the impugned

judgment has distinguished the two provisions of the

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two  different  Acts,  namely,  Section  7  of  the  Goa

Tenancy Act and Section 70 of the Bombay Tenancy

Act relying on the provisions of Section 4 of the Goa

Tenancy Act. According to the High Court, if Section 7

of the Goa Tenancy Act and Section 70 of the Bombay

Tenancy Act could be  considered as pari  materia  in

that  case  the  Mamlatdar  could  decide  the  question,

i.e. the concerned person is or is not a tenant, there

would be no need to provide for negative declaration

under Section 4 of the Goa Tenancy Act. According to

the High Court, the cardinal principle of interpretation

was that the duty of the court is 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. Making these

observations, the High Court held that the language of

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the  Goa Tenancy  Act  contemplates  that  no negative

declaration can be granted by the Mamlatdar under

Section 7 of the Goa Tenancy Act. At the same time,

the High Court also observed that, of course, when the

issue  arises  whether  the  person  is  a  tenant  or  not

before the Mamlatdar, he could always decide whether

the person who claims the right has so proved or not.

It  was  also  the  finding  of  the  High  Court  that  the

jurisdiction  of  the  Mamlatdar  to  decide  whether  the

concerned person is or was not a tenant, was inherent

in deciding the said issue. Before we proceed further,

let us produce Section 4 of the Goa Tenancy Act which

runs 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  the  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

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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 of  July,  1962,  but  before  the commencement  of  this  Act]  shall, notwithstanding the fact that the creation of the sub-tenancy 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

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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.”

12. A plain reading of this provision which in addition

would show that legislature has provided by introducing

Section  4  that  the  landlord  can  seek  a  negative

declaration  in  respect  of  the  category  of  persons

mentioned in Section 4(1). It is true that under Section

4(1) of the Goa Tenancy Act, the Mamlatdar is conferred

with  jurisdiction  to  declare  the  category  of  person

mentioned therein is or was not a tenant in respect of

the disputed property. But if we read Section 7 and the

objects and reasons of the Act and considering the fact

that for a limited purpose the Mamlatdar is conferred

with such power to declare the negative declaration in

respect of the certain category of persons under Section

4(1) of the Goa Tenancy Act, it cannot be said that while

deciding  the  question  under  Section  7  of  the  Goa

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Tenancy  Act,  the  jurisdiction  of  the  Mamlatdar  to

declare  that  the  concerned  person  is  or  was  not  a

tenant is ousted. Accordingly,  we are of the view that

the  High  Court  was  not  justified  in  holding  that  a

Mamlatdar is not conferred under Section 7 of the Goa

Tenancy  Act  to  deal  with  and  decide  whether  the

concerned person is a tenant or not a tenant in respect

of the disputed property.

13. Again  it  is  needed  to  be  mentioned  that  the

jurisdiction under Section 7 of the Goa Tenancy Act is

not  confined  to  cases  where  the  relationship  of  the

landlord and tenant is admitted. In fact, it is only where

the said relationship is alleged by one party and denied

by the other that the question falls to be considered and

the  decision  of  the  question  is  left  exclusively  to  be

determined by the Mamlatdar under the provision of the

Act. It is likely that a trespasser would thereby be able

to prolong litigation between him and the owner of the

property by frivolously raising a plea that he is a tenant

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or  a  protected  tenant;  but,  on  the  other  hand,  a

landlord may also frivolously allege that a tenant is a

trespasser.  We  must,  therefore,  hold  that  the  only

forum that can deal with this plea is the Mamlatdar. If

he rejects the plea, then only the dispute between the

owner  and  the  trespasser  would  be  triable  by  the

ordinary  Civil  Court;  but  otherwise,  the  Mamlatdar

alone  would  decide  the  dispute  in  so  far  as  it  falls

within  the  purview  of  the  Act.  In  our  view,  the

jurisdiction  of  the  Mamlatdar  under  Section  7  of  the

Goa  Tenancy  Act  is  not  confined  to  cases  where  the

question  is  whether  a  person  is  or  was  a  tenant  in

respect of the disputed property. The High Court in the

impugned judgment, as noted herein earlier, held that

the  provisions  of  the  Bombay  Tenancy  Act  and  Goa

Tenancy Act are similar, but in view of Section 4 of the

Goa Tenancy Act, the decisions of the Bombay Tenancy

Act, as referred to herein earlier, could not be applied in

the present case. We are unable to subscribe this view.

When the legislature has provided that the landlord can

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seek a negative declaration in respect of the category of

person mentioned in Section 4(1)  of  the Goa Tenancy

Act, it cannot conclusively lead to the conclusion that in

other  cases,  namely,  where  the  question  arises  as  to

whether a person is or is not a tenant, the Mamlatdar is

not  conferred  with  any  power  to  grant  negative

declaration that the concerned person is not a tenant in

respect of the disputed property. Accordingly, we are of

the  view  that  the  Mamlatdar  had  the  jurisdiction  to

declare  a  negative  declaration,  that  is  to  say,  a

particular person is not a tenant under Section 7 of the

Goa Tenancy Act  and,  therefore,  the judgment  of  the

High Court cannot be sustainable.

14. That apart, in our view, the scope of Section 7 of

the  Goa  Tenancy  Act  is  quite  different  from  that  of

Section  4  of  the  Goa  Tenancy  Act.  Section  4  is  to

operate from within a limited period of one year from

the date of enforcement of the Act, i.e., 8th of February,

1965, while section 7 is operative for all time.

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15. For  the  reasons  aforesaid,  we  set  aside  the

judgment of the High Court and restore the order of the

Mamlatdar  and the  application  filed  by  the  appellant

before the Mamlatdar stands allowed.

16. The appeal is accordingly allowed. There will be no

order as to costs.

                 ……………………… …J.

         [TARUN CHATTERJEE]

NEW DELHI;               ………………………..J. January 29, 2009 [AFTAB ALAM]

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