ORDER
R.M.S. Khandeparkar, J.
1. The point for consideration which arises in the present petition is 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.
2. The facts in brief relevant for decision are that the respondents No. 4 and 5 herein filed an application against the petitioners seeking a declaration that the petitioners who are the opponents in the said application were not the tenants in respect of the property bearing Survey No. 242 situated at Sancoale, Mormugao prior to the commencement of the enforcement of the Fifth Amendment to the said Act and even subsequent thereto. The application was filed in March, 1992. The petitioners herein while contesting the proceedings raised a preliminary point of jurisdiction of the Mamlatdar, to issue such a negative declaration. The Mamlatdar the respondent No. 3 while rejecting the preliminary objection by its. Order dated 5th April, 1994, held that in view of the Fifth Amendment to the said Act, the Court of Mamlatdar is entitled to decide that a particular person was or was not a tenant and that the positive declaration implies negative one and as such, the enquiry could proceed under section 7 of the said Act. The appeal preferred against the same was allowed by the Deputy Collector by his Order dated 17th April, 1995, and the Order of the Mamlatdar was set aside. The respondents herein preferred revision against the said Order before the Administrative Tribunal which was allowed by the Tribunal by its Order dated 7th July, 1997 upholding the Order of the Mamlatdar. It was held by the Tribunal that the landlord's application for negative declaration was maintainable before the Mamlatdar.
3. At this stage, it is to be noted that during the pendency of the proceedings before the Tribunal, the respondents No. 4 to 6 herein also filed a Regular Civil Suit No. 19 of 1997 before the Civil Judge, Senior Division, Vasco on 9th April, 1997 praying for declaration that the defendants No. 1 and 2 who are the petitioners herein were/are not tenants of the suit property and that they are not the deemed purchasers of the said property under the said Act and also for permanent injunction. It is equally necessary to note that the petitioners herein had filed an application for purchase of the suit property in terms of section 18-C of the said Act consequent to their name having been entered in the Record of Rights in respect of the said property and by Order dated 17th April, 1997, the Joint Mamlatdar (II) of Mormugao Taluka had fixed the purchase price of the suit property to be Rs. 8,810/- under the said Act and the petitioners had accordingly deposited the said amount in terms of section 18-H of the said Act with the Joint Mamlatdar consequent to which the petitioners were issued necessary certificate in Form III.A under the said Act.
4. Shri M.S. Sonak, learned advocate appearing for the petitioners while assailing the impugned Order submitted that the provisions contained in the said Act do not empower the Mamlatdar to issue negative declaration sought for by the respondents No. 4 to 6 and, therefore, the Tribunal ought not to have interfered with the Order passed by the Deputy Collector. He further submitted that the Tribunal was bound by the judgment of the learned Single Judge of this Court in the matter of Writ Petition No. 306 of 1996 dated 10th October, 1996 which was brought to the notice of the tribunal and which was directly on the point in issue and in relation to the provisions contained in the said Act and, therefore, by not following the same, the Tribunal acted illegally and in improper exercise of its jurisdiction while passing the impugned order. Drawing my attention to the fact of filing of the Civil Suit No. 19 of 1997 by the respondents No. 4 to 6 in the Civil Court, Vasco forsimilar declaration, the learned Advocate submitted that even the respondents themselves have correctly understood the provisions contained in the said Act and, therefore, there was no occasion for permitting the respondents to continue simultaneously with the proceedings for the same relief before the Mamaltdar. He further submitted that the jurisdiction to entertain a matter depends on the pleadings in the plaint or the application and being so, once the respondents approached the Mamlatdar complaining that the petitioners were trespassers in the property, considering the provisions contained in the said Act, the Mamlatdar had no jurisdiction under the said Act to entertain such an application. He placed reliance upon unreported Judgment of the learned Single Judge of this Court in the matter of Smt. Sitabai Ramchandra Vaze and others v. Administrative Tribunal and others, in Writ Petition No. 306 of 1996.
5. On the other hand, Shri J.E. Coelho Pereira, Senior Advocate appearing for the respondent Nos. 4 to 6 submitted that the issue regarding the jurisdiction of the Mamlatdar to entertain an application to grant negative declaration has already been decided by the Full Bench of this Court and the same was binding upon the Tribunal and, therefore, the Tribunal having followed the same and having passed the Order in accordance with the judgment of the Full Bench of this Court, no fault can be found with the Order of the Tribunal. Drawing my attention to the judgment of the Full Bench of this Court in the matter of Nivrutti Laxman Kondobahiri v. Shivdayal Laxminarayan Sarda and others), reported in A.I.R. 1960 Bom. 56 and in Rajaram Totaram Patel v. Mahipat Mahadu Patel and others in : AIR1967Bom408 , the learned Advocate submitted that the jurisdiction of the Mamlatdar is not restricted to the issuance of positive declaration. The issue as to whether a person is a tenant would include whether such a person is not a tenant and in that context placing reliance upon the decision of the Full Bench of this Court, the learned Advocate submitted that no fault can be found with the Order of the Mamlatdar rejecting the preliminary objection sought to be raised by the petitioners and duly confirmed by the Tribunal. He further submitted that by crafty pleadings, parties cannot choose to decide about the forum where parties should get relief in the matter. In any case, the learned Advocate submitted that the decisions of the Full Bench of this Court is binding upon a Single Judge and therefore, considering the judgment of the Apex Court in State of U.P. and another v. C.L. Agrawal and another, reported in : (1997)IILLJ770SC in case any contradictory view is to be taken, then the matter will again have to be referred to another Full Bench for its decision. He further drew my attention to the fact that the decision of the Full Bench cited by him was not brought to the notice of the learned Single Judge in the case of Smt. Sitabai Ramchandra Vaze (supra).
6. The learned Single Judge of this Court in the matter of Smt. Sitabai Ramchandra Vaze v. Administrative Tribunal (supra) has held that a Mamlatdar under the Tenancy Act assumes jurisdiction when the party approaches the Mamlatdar on the ground that he is a tenant of another, who is the landlord in respect of an agricultural land. The learned Single Judge has further held that the powers under section 7 of the said Act are different from section 34 of the Specific Relief Act, inasmuch as under latter provision, Civil Court enjoins jurisdiction to grant positive as well as negative declarations. It has been further held therein that section 7 provides that the Mamlatdar hasjurisdiction to decide whether any person is a tenant or should be deemed to be a tenant under the said Act, and therefore, the requirement is positive namely to decide whether the person is a tenant or deemed to be a tenant. Referring to the well established principle of taw that it is the pleas and/or pleadings that confers the jurisdiction on the authority, the learned Single Judge has held that as far as an application by tenant to the Mamlatdar under the said Act is concerned, three predicates are necessary for the Mamlatdar to assume the jurisdiction namely that there must be a tenant, there must be a landlord and there must be tenancy in existence. It is only to that extent that the jurisdiction of the Civil Court is barred and not in other respects. The learned Single Judge has, therefore, held that in cases where pleadings do not disclose existence of relationship of landlord and tenant between the parties, Mamlatdar could not get jurisdiction to entertain an application under the said Act. It is apparent that the decisions of Full Bench of this Court were not brought to the notice of the learned Single Judge while delivering the said judgment in Sitabai Ramchandra Vaze (supra). The question is had those decisions been brought to the notice of the learned Single Judge, whether his decision could have been different? In other words, it is necessary to see whether the Full Bench decision relied upon by the learned Advocate for the respondents is a complete answer to the question sought to be raised in the present petition.
7. In Nivrutti Laxman Kondobahiri v. Shivdayal Laxminarayan Sarda and others (supra), the Full Bench of this Court has held under Clause (b) of section 17 of Bombay Tenancy and Agricultural Lands Acts, 1948, that the Mamlatdar has jurisdiction to determine whether a person is a tenant and, therefore, he also can decide that a person is not a tenant. It has been further held that if the Mamlatdar can decide on an application by a person that he is a tenant, it is difficult to understand why the Mamlatdar should not be able to decide an application seeking the declaration that the opponent is not a tenant. In both the situations the question which Mamlatdar is required to decide is whether the relationship of tenant and landlord exists between the parties and the jurisdiction to decide this question vests exclusively in the Mamlatdar and Civil Court is not competent to determine the same. Referring to the words 'for the purpose of this Act' in the relevant section, the Full Bench has held that in their opinion, the said words mean for the purpose of deciding any question relating to a matter which is required or governed by the provisions of the Act and, therefore, question raised before Mamlatdar when it relates to a matter which is to be decided by referring to the provisions of the Act, its determination by the Mamlatdar will be for the purpose of the Act.
8. In Rajaram Totaram Patel v. Mahipat Mahadu Patel and others (supra) the Full Bench of this Court has held that the question contemplated in section 70(b) is not limited to an issue between the landlord and tenant. The Full Bench has further held that it is the function of the Mamlatdar to decide whether a person is a tenant and there is no reason to curtail the jurisdiction of the Mamlatdar in that regard by saying that the issue which the Mamlatdar has to decide is only an issue whether a person is a tenant of particular landlord.
9. On perusal of both the above decisions of the Full Bench, it is clear that the said decisions were given in relation to section 70(b) of Bombay Tenancy and Agricultural Land Act, 1948. The said section 70 of Bombay Tenancy Act provides thus:-
'70. The 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). ....
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.'
10. In fact, in the original section 70, when it was considered by the Pull Bench of this Court the Clause 'or was at any time in the past' was not there in the Clause (b) of section 70 of the Bombay Tenancy Act. It was added pursuant to the decision of the Apex Court in the matter of Mussamia Imam Haider Bax Razvi v. Rubari Govindbhai Ratnabai and others, reported in : [1969]1SCR785 wherein it was held that considering the provisions contained in section 70(b) of the Bombay Tenancy Act, the Civil Court jurisdiction to decide whether a person was a tenant in the past or not was not barred as no such powers were available to the Mamlatdar to decide the said issue. In any case, on plain reading of the said section 70(b) in the Bombay Tenant Act, it is clear that it is not only jurisdiction but there is a duty imposed upon the Mamlatdar to decide whether a person is a tenant or a protected tenant or permanent tenant. Such a duty is cast on the Mamlatdar for the purpose of the Act. If, we compare this provision with section 7 of the said Act, it is evident that there is no such duty as such imposed upon the Mamlatdar to decide such an issue. On the contrary, the provision reads thus:-
'7. The question of Tenancy---If any question arises whether any person is or was tenant or should deemed to be a tenant under this Act, the Mamlatdar shall after holding an enquiry decide such question'.
11. The provision contained in section 7 empowers the parties who are desirous of seeking a declaration of tenancy to approach the Court of Mamlatdar who is required to decide the same after holding necessary enquiry into the matter. In terms of section 7 the Mamlatdar is required to decide the question as to whether a person is a tenant on an application being filed to the effect by a party praying for such a declaration. There are various provisions in section 70 which cast various duties upon the Mamlatdar under the Act. In the course of performance of those duties, the Mamlatdar is expected to find out whether a person is a tenant or not. That is not the case under section 7 of the said Act.
12. Apart from these basic difference between the two provisions in the two statutes, there is a direct decision of the Apex Court on the point in issue. In the matter of Abdulla Bin Ali and others v. Galappa and others, reported in : AIR1985SC577 , the Apex Court therein has clearly held that when a person files a suit treating the opponent as a trespasser, such a suit against trespasser would certainly lie only before the Civil Court and the Revenue Court will have no jurisdiction in the matter. Reliance was placed on the well established principle of law that the jurisdiction depends upon the pleading in the plaint and not in written statement and that the jurisdiction of the Court does not depend upon the defence taken by the defendants in the written statement. In the said case, in 1919, one Tayamma filed an application before Tahsildar alleging that she had executed only a mortgage deed and not a sale deed in favour of the father of the appellant in the said case before the Apex Court. The Tahsildar, however, negatived her claim and came to the conclusion after the investigation that Tayamma had executed a sale deed and not a mortgage deed in favour of the appellant's father. Tayamma went in appeal but the same was dismissed and the parties were directed to approach the Civil Court for a proper redress of their grievances. In the mean time, Saibanna, the brother of Galappa was inducted as a tenant. In 1932, the father of the appellants filed a suit for declaration of his title and ownership in respect of the disputed land against Galappa and his brother Saibanna which was decreed. The father of the appellants died and he was succeeded by the appellants and Saibanna continued to pay the rent for sometime but thereafter he fell in arrears for a period from 1951 to 1954. The appellants, therefore, filed an application for recovery of the said amount in the Court of Tahsildar. In the said proceedings Saibanna denied the title of the appellants as also the tenancy. The appellants also initiated proceedings for the correction of tenancy register and in that proceedings the tenants denied the title of the appellants. The application for recovery of arrears of rent as well as for the correction of tenancy register were dismissed and the appellants were directed to approach the Civil Court as the dispute between the parties involved a question of title. In the circumstances, the appellants filed a suit for possession and mesne profits treating the defendants as trespassers. There the suit was resisted by the defendants on a number of grounds including the plea that the Court had no jurisdiction to try the suit on the allegation that in a plaint it was stated that the defendant No. 2 was a tenant in respect of the disputed plot. The plea was raised in pursuance of the bar under sections 32 and 99 of Hyderabad Tenancy and Agricultural Lands Act. The Trial Court as well as the first Appellate Court decreed the suit deciding all the issues in favour of the appellants. The High Court set aside the Judgment and Decree and held that the Civil Court had no jurisdiction to try the suit. The plaintiffs/appellants, therefore, preferred the Appeal before the Apex Court. While deciding the matter, the Apex Court held that there is no denying the fact that the allegations made in the plaint decide the forum and the jurisdiction does not depend upon the defence taken by the defendants in the written statement and considering the facts pleaded in the plaint therein, it was evident that the plaintiffs had filed the suit treating the defendants therein as trespassers as they had denied the title of the plaintiffs. It was held that the suit against the trespasser would lie only in the Civil Court and not in the Revenue Court. In other words, the Apex Court has held that the pleadings would decide the jurisdiction of the forum in which the matter will have to be filed for an appropriate decision in the matter. The learned Single Judge of this Court in the matter of Smt Sitabai Ramchandra Vaze (supra) has also held accordingly. The perusal of the decisions of the Full Bench will disclose that the same are not only in relation to section 70(b) of the Bombay Tenancy Act but nowhere in the said decisions the point which is sought to be raised in the present petition was considered and the decision relevant for the matter in issue is the decision of the Apex Court in the matter of Abdulla Bin Ali (supra).
13. The learned Single Judge in the said Smt. Sitabai's case has held that the perusal of section 7 disclose that the declaration thereunder is positive innature namely to decide whether a person is a tenant or deemed to be a tenant. This is squarely in consonance with the decision of the Apex Court in the matter of Mussamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabai and others, reported in : [1969]1SCR785 . While interpreting section 70(b) as it was then prior to its amendment, the Apex Court held thus:-
'Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant but sub-section does not cast a duty upon him to decide whether a person was or was not a tenant in the past and whether recent or remote'.
14. As already seen above, prior to amendment to section 70(b), the words 'or was at any time in the past' were not to be found in section 70(b) of the Bombay Tenancy Act and they were introduced only after the said decision in Mussamia's case. Considering the said decision in Mussamia's case, it is apparent from section 7 of the said Act that the powers of declaration given to Mamlatdar do not include power to decide whether a person is or was 'not' and are restricted to decide the issue whether a person is or was a tenant.
15. Constitutional Bench of the Apex Court in the matter of Dhulabhai v. State of M.P., reported in : [1968]3SCR662 has laid down certain principles regarding the ouster of the jurisdiction of the Civil Court. The same are the following:-
1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' 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 provision, however, does 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 the 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 become necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a 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 tribunals so constituted, and whether remedies normally associated with actions in Civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit isopen. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected, a suit lies.
(6) Foreshow of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry'.
16. While holding that section 70, as it was then before amendment, does not empower Mamlatdar to decide whether a person was a tenant in the past, the Apex Court in Mussamia's case has further held that there is nothing in the Bombay Tenancy and Agricultural Lands Act to suggest that the jurisdiction of Civil Court is expressly or by necessary implication barred with regard to the question whether a person had become statutory owner of the land and to decide in that connection whether such a party had been in the past tenant in relation to the land in question on particular past date. While holding so, the Apex Court has referred to the observations by the Judicial Committee in Secretary of State v. Mask and Co., reported in which reads thus :--
'It is settled law that the exclusion of the Jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied'.
17. Referring to section 7(1) of Orissa Tenants Protection Act, 1948, the Apex Court in the matter of Magiti Sasamal v. Pandab Bissoi and others, reported in : [1962]3SCR673 has held that though it is true that having regard to the beneficent object which the Legislature had in view in passing such Act, that its material provisions should be liberally construed, one cannot forget the important principle of construction, and that is that if a statute purports to exclude the ordinary jurisdiction of Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion.
18. At this stage, it is worthwhile to note yet another decision by the Apex Court in the matter of Raja Ram Kumar Bhargava v. Union of India, reported in : [1988]171ITR254(SC) which reads thus :--
'Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then even in the absence of an exclusionary provision the Civil Court's jurisdiction is impliedly barred. If, however, a right pre-existing, in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the CivilCourt's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies having open an element of election to the persons of inherence. To what extent and on what areas and under what circumstances and conditions, the Civil Court's jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai case'. (supra).
19. The issue of tenancy is not absolutely new creation under the statute of the said Act. The tenancy is always created by virtue of an agreement between the parties. What is sought to be done under the provisions of the said Act is that the persons holding lease of the agricultural properties are accorded certain protection and when such rights are sought to be disputed they are made entitled to seek a declaration of their right under the said Act from the Mamlatdar. While doing so, the declaration is sought to be limited to the extent of the existence of relationship of tenancy i.e. landlord and tenant. It does not speak about the absence of such relationship. Undoubtedly, such an issue can certainly be tried before a Civil Court and Civil Court is empowered to decide such issue. Section 58 of the said Act bars Civil Courts from entertaining the matters where any issue is required to be decided by the Mamlatdar under the said Act. As has been seen above and has been held by the Single Judge in the matter of Smt. Sitabai Ramchandra Vaze, the issue under section 7 which can be dealt by Mamlatdar is only relating to the positive declaration regarding the tenancy in the persons claiming such right. Mamlatdar has no jurisdiction to give negative declaration in favour of a person disputing the tenancy right of the opponent and accusing the opponent of being a trespasser.
20. In fact, the ratio of the decision of Full Bench, of this Court in the matter of Rajaram Totaram Patel is that whenever the issue is raised in any suit whether a person is a tenant, by whomsoever it is raised, the issue will have to be decided by the Mamlatdar. In any case, in view of the decision of the Apex Court in the matter of Abdulla Bin Ali and others, it cannot be held that the landlord can seek negative declaration against the opponent to the effect that the opponent is not a tenant under the provisions of the said Act.
21. In this view of the matter, the Order of the Tribunal holding that Mamlatdar had jurisdiction to proceed with the matter, relying with the decision of the Division Bench and ignoring the decision of the learned Single Judge cannot be sustained. It is true that the Tribunal has held that there is no difference in what the Mamlatdar is required to do under section 7 of the Act and under section 70 of the Bombay Tenancy Act. This observation has been made without analysing the scope of two different sections in two different statutes. The Apex Court has clearly held in the matter of Nothia Agarwalla and another v. Jahanara Begum and others, reported in : [1966]3SCR926 that while considering a particular statute, a comparison of the language with that in other similar statutes is not commendable, though sometimes instructive, because similarity or variation in the different laws is not necessarily indicative of a kindred or a changed intention. Enactments drafted by different hands at different times and to satisfy different requirements of a local character seldom afford tangible or sure aid in construction. Similarly, the Apex Court has held in The Board of Muslim Wakfs, Rajasthan v. RadhaKishan and others, reported in : [1979]2SCR148 that it is not a sound principle of construction to interpreter expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to a construction of one Act cannot apply with reference to the provisions of another Act unless two Acts are in pari materia. Undisputedly, the Tribunal never made an attempt to find out whether section 7 of the said Act is in para materia with section 70 of the Bombay Tenancy Act. The tribunal ought to have considered that the decision in Smt. Sitabai Ramchandra Vaze was directly in relation to the provisions in the said Act, whereas the decisions with the Pull Bench were in relation to section 7(b) of the Bombay Tenancy Act. It was not proper on the part Of the Tribunal to discard the decision of the learned Single Judge which is directly on the point in issue while deciding the matter.
22. In this view of the matter, the petition succeeds. It is held that Mamlatdar in exercise of its jurisdiction under the said Act is not empowered to entertain an application for negative declaration to the effect that opponent is not a tenant of an agricultural property. Rule is made absolute in above terms. No order as to costs.
23. Petition allowed.