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TMI Blog1995 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... suit land from Sharif Hussain on 24 . 2 . 1955 . At that time Mohan Lal, original defendant and appellant in this appeal, was in occupation of that land as a tenant . Mohan Lal continued to hold the land as his tenant alter the sale . Some time in June 1955, he approached the Village Panchayat as Mohan Lal had not given him his share in the produce . On 16 . 6 . 1955 a compromise was arrived at between him and Mohan Lal where under Mohan Lal had agreed to relinquish possession of the land as he was not able to pay the rent and on his part he had agreed not to recover his share / rent . Pursuant to the compromise the Panchayat also passed a resolution to that effect and Mohan Lal willingly handed over possession of the land to him . On 21st June, 1955 i . e . within 5 days of the compromise Mohan Lal approached the Sub - Divisional Magistrate of that area and alleged that he was forcibly dispossessed and claimed restoration of possession under Section 43 of the Act . The Sub Divisional Magistrate rejected that application as an application under Section 43 could be made to the Collector and not to him . Soon after the SDM was invested with that power Mohan Lal again applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a complete Code in itself and provides for a complete machinery for decision of a dispute like the one which was before him . He further held that it was open to the Collector while dealing with an application under Section 43 of the Act to go into the disputed questions like whether the dispossession of the tenant was illegal and whether the compromise was entered into by the tenant voluntarily or under duress . He further held that the language used in Section 43 shows that the legislature by necessary intendment, if not expressly, has given to the Collector the power to enquire not only into the question whether the person concerned is liable to be ejected on the basis of certain facts admitted or already proved before the Civil Court but also into the existence of those facts . In other words, he held that it was open to the Collector to decide the disputed question namely whether the compromise pleaded by the land owner was entered into voluntarily or under duress and as he found on enquiry that the compromise was arrived at under duress and, therefore, possession of the land owner was unlawful, the jurisdiction of the Civil Court was barred in respect of the matter, by vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not become final as it is the Civil Court which can pronounce finally on such matters . The High Court therefore, allowed the Letters Patent Appeal set aside the order passed by the learned Single Judge and restored that of the lower appellate Court . 5 . During the pendency of this appeal Mohan Lal died and he is now represented by his legal heirs . When this appeal came up for hearing before a two Judge Bench of this Court, it doubted correctness of the decision in Bhai Ardaman's case ( supra ) and expressed the view that it requires reconsideration for the following reasons : We do not see any warrant for the proposition that in order to attract Section 43 ( 1 )( b ) there should be a specific and express provision in the Tenancy Act itself to the effect that those who are in illegal occupation will not be entitled to use the land . The Collector has been invested with the power to eject unlawful occupants under Section 43 ( 1 )( b ). The provision will become meaningless if even in cases where a tenant admittedly in possession hitherto is forcibly dispossessed, and that the Collector has no jurisdiction to evict him by holding an appropriate enquiry on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of 1953 ) , which had come into force on December 13, 1953, for restoration of possession of lands which were in their possession earlier, alleging that they were forcibly dispossessed by the land owner and, therefore, he was in wrongful and unauthorised possession of those lands . The Collector granted the applications and ordered restoration of possession . The orders were confirmed in appeal by the Commissioner . A learned Single Judge of the High Court dismissed the petitions filed against those orders . In appeals under the Letters Patent the High Court reversed the orders passed by the learned Single Judge on two grounds . 8 . It held that the Act 8 of 1953 did not have retrospective operation and, therefore, no order for restoration of possession could have been passed as dispossession had taken place in 1943 i . e . long before the Act was brought into force . It also held that the proceedings of the Collector were vitiated because the landowner was not given an opportunity to lead evidence . This Court upheld the view of the High Court that Section 43 had no retrospective operation . It also held that in order to attract the jurisdiction of the Collector t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order of eviction to show that the other person is not only in unlawful or unauthorised possession of the land out is also not entitled to its use and occupation under the Act . 10 . We will now deal with the contentions raised before, us . The contention raised on behalf of the appellant was that under Section 43, the Collector had the jurisdiction to decide whether Nahar Singh was in wrongful or unauthorised possession of the land and whether the other condition contained in Clause ( b ) was satisfied or not . In order to find that out the Collector had also the jurisdiction to consider the correctness or otherwise of the grounds on the basis of which it was contended by the respondent that it was lawful . It was conceded on behalf of the respondent that a mere denial by the opponent that his possession is not unlawful or unauthorised and that the other condition contained in Clause ( a ) or ( b ) , as the case may be, is not satisfied, will not be sufficient to the jurisdiction of the Collector . It was also not disputed that before the Collector can exercise his powers under Section 43 it is not necessary that the facts constituting the condition precedent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that are likely to arise in the implementation of the Act and further provides for appeals and other miscellaneous matters . The Act is thus a beneficent legislation and a complete code in itself . 12 . Section 43 is aimed at a person who may be found by the Collector in unlawful or unauthorised possession of land because of one of the two contingencies mentioned in that section . Even if the transfer in his favour is by an act of the parties or by operation of law, if it is declared to be invalid under the provisions of the Act, the Collector can treat it as unlawful and eject him from the land . So also, a person in possession of land, if found not entitled to its use and occupation under the provisions of the Act, can also be ejected there from . This provision clearly indicates the intention of the legislature that it should prevail over not only the acts of the parties but operation of laws also, in the matter of transfer and possession of agricultural lands . The purpose of this provision is to see that the subject of protection of tenancy rights and land reforms is fulfilled . Therefore, it confers a new right and provides a quick and effective remedy for enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial is summary, the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment . The word summary implies a short and quick procedure instead of or, as an alternative to, the more elaborate procedure ordinarily adopted or prescribed for deciding a case . The proceedings before a Court, tribunal or an authority are called summary proceedings if it is not required to follow the regular formal procedure but is authorised to follow a short and quick procedure for expeditious disposal . Therefore, merely because the Collector acting under Section 43 has to make a summary enquiry it cannot be said that he can decide only simple questions as regards the nature of possession and not those questions which are complicated but have a bearing on the nature of possession . The contention raised if accepted would result in unduly restricting the scope of enquiry and thereby frustrating the very purpose of enacting Section 43 . 15 . We, therefore, hold that when an application is made to the Collector under Section 43 he has to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly arose before the Collector was whether there was a voluntary surrender of tenancy rights . For that reason the two decisions relied upon by the learned Counsel for the respondent are of no help to him . 17 . Once it is held that the question whether the surrender was voluntary or not fell within the jurisdiction of the Collector, it will have to be further held that in view of the bar contained in Section 47 ( 2 ) Collector's decision on that point became final and could not have been called in question in the suit . In view of the bar contained in Section 47 ( 1 ) the Civil Court had no jurisdiction to consider the same . It is, therefore, not necessary to consider the alternate contention that the decision of the Collector operated as res judicata in view of Explanation VIII to Section 11 and to refer to the decision of this Court in Sulochana Amma v . Narayanan Nair MANU / SC / 0047 / 1994 wherein it is held that an order of an issue which had arisen directly or substantially between the parties or there privies and decided finally by a competent Court or Tribunal, though of limited or special jurisdiction, will operate as res judicata in a subsequent suit o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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