SHAH VISANJI DUNGARSHI v. JOSHI BHARA DAHYA — 1981 DIGILAW 115 (GUJ)

N. H. BHATT, J. ( 1 ) THESE two almost identical matters by the common petitioners but against different respondents who are the father and the son can be conveniently dealt with together and disposed of by this common judgment. The land involved in these two petitions is the agricultural land situated within the district of Kutch. The petitioners herein claim to be the Inamdars and on the advent of the Bombay Inams (Kutch Area) Abolition Act 1958 (the Act for short) they claim to have procured the occupancy certificate as provided for in the said Act. According to them they were cultivating the same through hired labour. These respondents for the first time in the year 1967-68 put forth a contention that they were tenants on the land. 14 order to obviate this assertion on the part of the respondents the petitioners filed declaratory proceedings before the Mamlatdar under sec. 100 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act 1958 (hereinafter referred to as the Kutch Tenancy Act for brevity sake ). After recording evidence the authority held in those two cases that the respondents were not tenants. Being aggrieved by the decision of the Mamlatdar these respondents preferred two appeals before the Deputy Collector who quashed the order passed by the Mamlatdar and remanded the proceedings for fresh decision. The competent authority under sec. 100 (2) of the Kutch Tenancy Act again held that the respondents were not the tenants. Again the respondents preferred the appeals before the Deputy Collector but at that time the petitioners took up the contention that sec. 107 of the Kutch Tenancy Act dealt with appeals and the appeal in respect of an order under sec. 100 (2) of the Kutch Tenancy Act was not competent This argument went home to the Deputy Collector who appears to have held that appeal is a statutory right and unless statute confers such a right there cannot be any right to appeal. The result was that the appeals were dismissed. The matter was carried by the respondents to the Gujarat Revenue Tribunal by filing revision applications and the Revenue Tribunal took the decision that the orders were appellate with the result that the appeals were remanded to the Deputy Collector for decision on merits. The result was that the appeals were dismissed. The matter was carried by the respondents to the Gujarat Revenue Tribunal by filing revision applications and the Revenue Tribunal took the decision that the orders were appellate with the result that the appeals were remanded to the Deputy Collector for decision on merits. It is these two identical decisions of the Gujarat Revenue Tribunal that are challenged in these two special civil applications. ( 2 ) IT cannot be disputed that appeal is a right created by the statute and it is not a natural right. Whoever claims a right to prefer an appeal must pinpoint a specific legal provision under which such a right can be claimed. The order under sec. 100 (2) of the Kutch Tenancy Act which is analogus to sec. 70 (b) of the Bombay Tenancy and Agricultural Lands Act 1948 operative in this part of the State in specifically made not appealable. So there is no escape from the fact that there is no appeal against an order passed by the Mamlatdar under sec. 100 (2) of the Kutch Tenancy Act. ( 3 ) A situation somewhat similar to the one that has arisen before me in these two petitions had arisen before the Division Bench of this High Court in respect of an appeal against an order passed under sec. 70 of the Bombay Tenancy and Agricultural Lands Act 1948 Overruling the decision of J. B. Mehta J. the Division Bench of this High Court in the case of Keshavla Paragji v. The Gujarat Revenue Tribunal anal Another reported in 16 GLR (1975) 904 held that an order under sec. 70 of the Bombay Tenancy and Agricultural Lands Act was appealable because it was to all intents and purposes an order under sec. 4 of the Bombay Tenancy and Agricultural Lands Act which was made specifically appealable under sec. 74 of the very Act. Thereafter the Legislature itself inserted a provision in sec. 74 and made the order passed under sec. 70 (b) as specifically appealable. Relying upon the analogy of that decision of the Division Bench of this High Court the Gujarat Revenue Tribunal took the view that the orders under sec. 100 (2) of the Kutch Tenancy Act should be treated to be orders under sec. 7 of the said Act. It is to be recalled here that sec. 70 (b) as specifically appealable. Relying upon the analogy of that decision of the Division Bench of this High Court the Gujarat Revenue Tribunal took the view that the orders under sec. 100 (2) of the Kutch Tenancy Act should be treated to be orders under sec. 7 of the said Act. It is to be recalled here that sec. 6 of the Kutch Tenancy Act deals with persons deemed to be tenants and sec. 7 deals with permanent tenants. If we turn to sec. 107 of the Kutch Tenancy Act we find that the order under sec. 7 is made appealable but order under sec. 6 is not made appealable. So the analogy of the provisions of Bombay Tenancy Act as applicable to this part of the State will not at all be attracted to the case arising under the Kutch Tenancy Act. In my view the Tribunal has seriously erred in its view in this regard. ( 4 ) MR. P. V. Hathi the learned advocate appearing for the respondents however urged that the respondent could well raise the plea of permanent tenancy and this also could be deemed to have been negatived in the decision made by the Mamlatdar under sec. 100 (2) of the Kutch Tenancy Act. This is a fresh factual plea raised for the first time before me and such pleas are raised nowhere in the affidavits before. Even if they are raised in the form of affidavit-in-reply in this Court in a petition under Art. 227 of the Constitution of India such new pleas cannot be taken note of. ( 5 ) MR. Hathi then alternatively urged that the earlier remand order by the very Deputy Collector in the appeal of these tenants was taken laying down by these petitioners and so they could not be permitted to raise this question if they had missed the bus on the first occasion. It is difficult for me to accept this argument. Lack of jurisdiction is a point of law apparent on the face of the record. Consent and conduct do not confer jurisdiction on any authority. ( 6 ) THE earlier appeal was not preferred by those petitioners and therefore they could not be said to have taken any advantage of the earlier proceedings. Lack of jurisdiction is a point of law apparent on the face of the record. Consent and conduct do not confer jurisdiction on any authority. ( 6 ) THE earlier appeal was not preferred by those petitioners and therefore they could not be said to have taken any advantage of the earlier proceedings. For want of any legal assistance if they did not object to the lack of jurisdiction they could not be now estopped under any legal principle from raising this question. ( 7 ) MR. Hathi in this connection invited my attention to the last paragraph of the above-mentioned judgment of the Division Bench of this High Court in the case of Keshavlal Paragji (supra ). It is perfectly open to these respondents to request the Deputy Collector to treat their earlier appeals as revision applications filed under the provisions of sec. 110 of the Kutch Tenancy Act which is analogus to sec. 76a of the Bombay Tenancy Act which is in operation in this part of the State and the Deputy Collector will be at liberty to deal with such a request in accordance with law. The results is that the petitions are allowed by quashing the orders passed by the Gujarat Revenue Tribunal. Rule is accordingly made absolute with no order as to costs in both the matters appeal dismissed. .