Ramchandra Keshav Adke & Ors Vs.
Govind Joti Chavare & Ors [1975] INSC 59 (4 March 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION: 1975 AIR 915 1975 SCR (3) 839 1975
SCC (1) 559
ACT:
Bombay Tenancy Act (67 of 1948)--S.
5(3)--Scope of.
HEADNOTE:
Section 5(3)(b) of the Bombay Tenancy Act
enacts that a tenant may terminate the tenancy at any time by surrendering his
interest as a tenant in favour of the landlord provided that such surrender
shall be in writing and shall be verified before the Mamlatdar in the manner
prescribed.
Rule 2-A of the Rules states that the
Mamlatdar, when verifying a surrender of a tenancy by a tenant, shall satisfy
himself after such inquiry as he thinks fit, that the tenant understands the
nature and consequences of the surrender and also that it is voluntary, and
shall endorse his findings in that behalf upon the document of surrender.
The appellants, who were the landlords of
certain lands, made an application to the Mamlatdar stating that the tenant was
willing to surrender his tenancy in the agricultural land and prayed for
verification under s. 5(3) of the Bombay Tenancy Act (67 of 1948). The
Mamlatdar did not verify the surrender. The Circle Officer recorded the
statement of the tenant and the landlords and passed an order on the
application. Mutation entry was made in the record of rights of the village and
the landlords' name was entered in the register as a person in actual
possession of the land.
A few months later, however, the tenant made
an application for a declaration that he was the tenant is possession of the
land in dispute. This was dismissed by the Tenancy Aval Karkun. The tenant
thereupon preferred an appeal before the Special Deputy Collector, who held
that the order passed by the Circle Officer was not an order passed by the
Mamlatdar as required by the tenancy law and as such it was without
jurisdiction and void and that there was no verification of the surrender
application as required by law. The revision application preferred to the
Maharasthra Revenue Tribunal by the landlords was dismissed. The landlords'
writ petition was dismissed by the High Court holding that the alleged
surrender was a nullity as there was no compliance with the mandatory
requirements of s. 5(3) of the Bombay Tenancy Act, read with r. 2-A.
On appeal to this Court it was contended that
the provisions of r. 2-A are directory and not mandatory and that there had
been a substantial compliance with the requirements of the relevant provisions of
the Act and the rule.
Dismissing the appeal,
HELD : 1(a) The imperative language the
beneficent purpose and importance of s. 5(3)(b) of the Act and r. 2-A for
efficacious implementation of the general scheme of the Act- all unerringly
lead to the conclusion that they were intended to be mandatory. Neglect of any
of these statutory requisites would be fatal. Disobedience of even one of these
mandates would render the surrender invalid and ineffectual. [844G] (b) The
language of s. 5(3) (b) and r. 2-A is absolute, explicit and peremptory. The
words provided that' read with the words 'shall be' repeatedly used in s.
5(3)(b) make the termination of tenancy by surrender entirely subject to the
imperative conditions laid down in the proviso. This proviso throws a
benevolent ring of protection around tenants. It is designed to protect a
tenant on two fronts against two types of dangers-one against possible
coercion, undue influence and trickery proceeding from the landlord and the
other against the tenant's own ignorance.
improvidence and attitude of helpless
self-resignation stemming from his weaker position in the tenant-landlord
relationship. [844E-F] 840 (c) The intention of the legislature is to be
ascertained upon a review ,of the language, subject matter and importance of
the provision in relation to general object to be secured, the mischief to be
prevented and the remedy to be promoted by the Act. [843F] Liverpool Borough
Bank v. Turne (1861) 30 L.). Ch. 379 at P. 380 Craise On Statute Law, 7th Edn.
p. 262. referred to.
In the instant case all that the Circle
Officer did was to record the statement of the tenant and landlord and make the
order. He did not say a word that he was satisfied that the tenant had
voluntarily made a surrender after understanding its nature and consequences
nor did he endorse his satisfaction on the tenants deed of surrender as
required by r. 2-A, The requirement as to the recording of its satisfaction by
the authority it, the manner prescribed by the rule was the substance of the
matter and not an empty formality. In the absence of the requisite endorsement
it cannot be said that there had been even a substantial compliance with the
statutory requirements. [845A-C] (2) The rule that where a power is given to do
a certain thing in a ,certain way, the thing must be done in that way or not at
all and that other methods of performance are necessarily forbidden is
attracted with full force in this case because non-verification of the
surrender in the requisite manner would frustrate the very purpose of this
provision. Intention of the legislature to prohibit the verification of the
surrender in a manner other than the one prescribed, is implied in these
provisions. Failure to comply with these mandatory provisions had vitiated the
surrender and rendered it non-est for the purpose of s. 5(3)(b) of the Act.
[845E-G] Taylor v. Taylor [1876] Ch. D 426; Nazir Ahmed v. Emperor L.R. 63 I.A.
372-AIR 1936 P.C. 253; Shiv Bahadur Singh v.
State of U.P. [19541 S.C.R. 1098 and Deep
Chand v. State of Rajasthan [19621 S.C.R. 662 followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 58 & 810 of 1968.
Appeal by special leave from the judgment and
order dated the 5th October, 1967 of the Bombay High Court in-, S.C.A.
Nos. 695 696 of 1966.
S. T. Desai and B. R. Agarwala, for the
appellants.
K. Rajendra Choudhury and P. C. Kapur, for
the respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-These appeals by special leave are directed against the common
judgment, dated 5.10.1967, of the High Court of Bombay dismissing two Writ
Petitions filed by the appellants to impugn the orders of Maharashtra Revenue
Tribunal. The material facts are these On September 8, 1953, the predecessor of
appellants 1 and 2 (hereinafter called the landlords) made an application to
the Mamlatdar of Miraj, that the tenant (Respondent no. 1) was willing to
surrender his tenancy in the agricultural land, bearing Survey No. 102/2,
admeasuring 8 acres and 22 Gunthas, situated at village Haripur, Taluka Miraj, District
Sangh in the State of Maharashtra. The landlord prayed that the surrender in
his favour should be verified under s.5(3) ,of the Bombay Tenancy Act 67 of
1948. To this application the landlord annexed a letter of surrender bearing
the thumb-impression 841 of the tenant. The Mamlatdar did not verify the
surrender.
or pass any final order in the matter. 'The
landlord's application' however came up before Shri Bhokare, the then Circle
Officer of Miraj who after recording the statements of the tenant and the
landlord, made this order on it.
"The applicant and the tenant are
present.
The tenant Shri Chaware states that the suit
land viz. S. No. 102/1 measuring 8-22 and assessed at Rs. 44-3-0 of Haripur
belongs to the applicant and that he is cultivating the same as a protected
tenant. He further adds that he does not want to cultivate the same any longer
and so he is surrendering the possession willingly along with crops and also
the fight as pro. tenant.
1, therefore, order that the possession of
the suit land should be handed over to the applicant with the crops and the
right as pro. tenant should be deleted under Section 29 (i) (3) of the B.T. and
AL. Act 1948 Haripur Bhokare 18-9-53. (M. M.
Bhokare) Circle Officer, Sangli."
Pursuant to the above order, a Panchnama was prepared by the Talati on November
20, 1953, in which it was stated that the possession of this tenancy land had
been given to the landlord. The latter executed a Kabje-Pavti to the effect,
that he had obtained the possession. Mutation entry No. 431 was also made in
this respect in the, record of rights of the village and the name of the
landlord was entered as Kabzedar in actual possession. On April 23, 1959, the
land- lord sold this land to appellants 3 and 4 and respondents 2 and 3.
On 9-11-1959, the tenant made an application
against the landlord and his transferees (Sherikars) to the Additional Tenancy
Avalkarkun, Miraj, praying for a declaration that he was the
tenant-in-possession of the land in dispute and further that the opponents be
injuncted not to disturb his possession over the land. In the alternative, he
prayed that if he was found to have lost possession, the same be restored to
him, This application was opposed by the landlord and his transferees on two
main grounds: (1) that the tenant had duly surrendered his tenancy in 1953 and
he was not in possession thereafter, and (2) that his application was
time-barred. Both these (,rounds found favour with the Tenancy Aval Karkun, and
he dismissed the tenant's application by an order dated 22-11-1961.
Aggrieved, the tenant filed Tenancy Appeal
No. 292 of 1962 before the Special Deputy Collector, Sangli. The tenant
preferred another appeal also, to the Deputy Collector against the order, dated
18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was
deleted from the record of rights. The Deputy Collector held that Shri
Bhokare's Order was not an order passed by a Mamlatdar as required by the
Tenancy law and, consequently, it was without jurisdiction and void. He further
held that there was no verification.
842 of the surrender application as required
by law. He further found that, in fact, the tenant had never surrendered the
tenancy, but had continued to be in possession till he was illegally
dispossessed in 1959 and consequently his application was within time. On these
findings the Special Deputy Collector allowed both the appeals, and directed
that the possession of the suit land be restored to the tenant.
He also set aside the order of the Circle
Officer regarding the mutation entry.
Against the Deputy Collector's decision, the
landlord preferred two revision applications before the Maharashtra Revenue
Tribunal. The Tribunal dismissed the revision applications and affirmed the
findings of the Deputy Collector. The landlords and their transferees thereupon
moved the High Court of Bombay by two writ petitions under Article 227 of the
Constitution for impugning the revisional orders of the Tribunal. The High
Court, as already stated, dismissed the petitions. Hence these appeals.
The common question that falls to be
determined in these appeals is whether in the circumstances of this case, the
alleged surrender by the tenant was valid? The Deputy Collector and the
Tribunal have concurrently answered this question in the negative on the
threefold ground : (i) That the so-called surrender was a sham transaction
because the tenant continued thereafter to be in possession and paid rent to
the landlord upto 1959; (ii) That Circle Officers were not empowered to, dispose
of tenancy cases and as such Shri Bhokare's order, dated September 18. 1953,
was without jurisdiction and (iii) That the surrender had not been verified as
required by law.
The High Court upheld the finding on ground
(i), the same being a finding of fact not shown to be erroneous. It did not
think it necessary to go into the second ground.
Regarding the third ground, it held that the
alleged surrender was a nullity as there was no compliance with the mandatory
requirements of s.5(3) of the Bombay Tenancy Act, 1953 read with Rule 2-A in
regard to the verification of a surrender.
Section 5(3)(b) of the Act, at the material
time, was as follows "A tenant may terminate the tenancy at any time by
surrendering his interest as a tenant in favour of landlord. be Provided that
such surrender shall be in writing and shall 'Lie verified before the Mamlatdar
in the manner prescribed." The manner of such verification has been
prescribed by Rule 2-A, in these terms :
"The Mamlatdar when verifying a
surrender of a tenancy by a tenant in favour of the landlord under clause (b)
of Subsection (3) of section 5, shall satisfy himself, after such enquiry as he
thinks fit, that the tenant understands the nature and consequences of the
surrender and also that it is voluntary, and shall endorse his findings in that
behalf upon the document of surrender." 843 It will be seen from a
combined reading of these provisions that a surrender of tenancy by a tenant in
order to be valid and effective must fulfill these requirements : (1) It must
be in writing. (2) It must be verified before the Mamlatdar.
(3) While making such verification the
Mamlatdar must satisfy himself in regard to two things, namely, (a) that the
tenant understands the nature and consequences of the, surrender, and (b) that
it is voluntary. (4). The Mamlatdar must endorse his finding as to such
satisfaction upon the document of surrender.
Mr. Desai, learned Counsel for the appellants
contends that the, provisions of Rule 2-A are directory and not mandatory;
that in any case there has been a substantial
compliance with the requirements of the relevant provisions of the Act and the
Rule. It is submitted that the deed of surrender executed by the tenant was
presented along. with the application of the landlord, to the Mamlatdar; that
the Circle Officer exercising the powers of Aval Karkun, then made an enquiry
and recorded the statements of the tenant and the landlord to ascertain whether
the surrender had been intelligently and voluntarily made by the tenant, and
that it was only after verifying the requisite tacts, the Officer made the
order directing delivery of possession to the landlord and deletion of the
tenant's name from the record of rights. It is argued that the mere fact that
the Circle Officer's order or endorsement was strictly not in the form
prescribed, would not invalidate the surrender. In this connection, the learned
Counsel drew our attention to this sentence in the judgment of the Tribunal :
"But there is no doubt that the above formalities were gone through before
the Circle Officer".
Thus, the first point to be considered is,
whether the requirements, of these provisions are mandatory or directory.
"No universal rule", said Lord Campell"(1) can be laid down as
to whether mandatory enactments shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the duty of
Courts of' justice to try to get at the real intention of the legislature by
carefully attending to the whole scope." Such intention of the legislature
is therefore to be ascertained upon a review of the language, subject matter
and importance of the provision in relation' to the general object intended to
be secured, the mischief, if any, to be prevented and the remedy to be promoted
by the Act, Prior to the enactment of the Bombay Tenancy Act, 1939, the laws
governing the, relations between landlords and tenants in the State did not
ensure equal status of contract or agreement to the contracting parties
inasmuch as the tenants were in a much inferior position. The tenants had no
security of tenure Nor any protection against eviction or rack-renting. Bombay
Act 29 of 1939 was the first measure enacted to remedy these evils and to
improve the condition of tenants of agricultural lands in the Province.
(1) Liver-pool Borough Bank v. Tunneer (1861)
30 L. J. Ch. 37 9at p. 380; Craies on Statute Law, 7th Edn., p. 262.
844 The Bombay Act 67 of 1948 registered an
advance in the matter of ameliorating the lot of ryots. It marked a big step
taken in the post-Independence era by the State legislature towards
implementation of the policy of agrarian reforms. Chapter 11 of the Act deals
with tenancies in general. Sections 5 and 15 are in this Chapter. Chapter III
makes provision for special rights and privileges of tenants and allied
matters. The provisions in these Chapters confer on protected tenants' the
right to purchase their holdings from their landlords, to prevent uneconomic
cultivation and to create and encourage peasant proprietorship.
Provision for 'surrender' of tenancy first
appeared in a bald form. without any safeguards, in the Proviso to Section 5(2)
of the Act of 1948. That Proviso ran thus :
"Provided that any tenancy may be
terminated by a tenant before the expiry of a period of ten years by surrendering
his interest as a tenant in favour of landlord." In its unguarded form,
the provision was inadequate, and vulnerable. It was susceptible to abuse.
Under its cloak, scheming landlords could squeeze out tenants, or induce them
by questionable means to leave the protective umbrella of the Act. The Bombay
,(Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this
provision and hedged round the surrender with effective safeguards. It
substituted sub-section (3)(b)-as reproduced by us ,earlier in this
judgment-for the old Proviso in Section 5.
The language of s.5(3)(b) and Rule 2-A is
absolute, explicit and peremptory. The words "Provided that" read
with the words "-shall be", repeatedly used in s.5(3)(b), make the
termination of tenancy by surrender entirely subject to the imperative
conditions laid down in the Proviso. This Proviso throws a benevolent ring of
protection around tenants. It is designed to protect a tenant on two fronts
against two types of dangers-one against possible coercion, undue influence and
trickery proceeding from the landlord, and the other against the tenant's own
ignorance, improvidence and attitude of helpless self-resignation sterming from
his weaker position in the tenant-landlord relationship.
Thus, the imperative language, the beneficent
purpose and importance of these provisions for efficacious implementation of
the general scheme of the Act all unerringly lead to the conclusion that they
were intended to be mandatory. Neglect of any of these statutory requisites
would be fatal. Disobedience of even one of these mandates would render the
surrender invalid and ineffectual, Having seen that the requirements of
s.5(3)(b) and Rule 2A are obligatory, and not directory, it remains to be
considered whether these imperatives have been substantially complied with in
the manner prescribed, and if not, what is the consequence of non-compliance ?
The question of inherent jurisdiction apart, all that the Circle Officer did in
this case, was that he recorded the statements of the 84 5 tenant and landlord
and made the order-which we have reproduced in full earlier in this judgment.
Although in this order he referred to the tenant's statement "that he does
not want to cultivate the same any longer and so he is surrendering the
possession willingly along with crops and also the right as pro. tenant",
he did not say a word that he was satisfied that the tenant had voluntarily
made the surrender after understanding its nature and consequences, much less
did he endorse his satisfaction on the tenant's deed of surrender as required
by Rule 2-A. Verification of the surrender implies that the authority was
satisfied as to the statutory requisites after due enquiry. Such satisfaction
of the authority was the essence of the whole thing. In other words, this
requirement as to the recording of its satisfaction by the authority in the
manner prescribed by the Rule, was the substance of the matter and not an empty
formality. In the absence of the requisite endorsement, therefore, it cannot be
said that there has been even a substantial compliance with the statutory
requirements.
Mr. Desai's contention that the Tribunal had
found that the Circle Officer had complied with all the formalities prescribed
by law, does not appear to be correct. The sentence from which it is sought to
be spelled out should not be torn from its context. Earlier in its judgment,
the Tribunal had clearly said in concurrence with the Deputy Collector, that
the surrender had not been verified as required by law.
Next point to be considered is, what is the
consequence of noncompliance with this mandatory procedure ? A century ago, in
Taylor v. Taylor(1), Jassel M. R. adopted the rule that where a power is given
to do a certain thing in a certain way, the thing must be done in that way or
not at all and that other methods of performance are necessarily forbidden.
This rule has stood the test of time. It was applied by the Privy Council, in
Nazir Ahmed v. Emperor(2) and later by this Court in several cases(3), to a Magistrate
making a record under ss. 164 and 364 of the Code of Criminal Procedure, 1898.
This rule squarely applies "where, indeed, the whole aim and object of the
legislature would be plainly defeated if the command to do the thing in a
particular manner did not imply a prohibition to do it in any other.(4)"
The rule will be attracted with full force in the present case because
non-verification of the surrender in the requisite manner would frustrate the
very purpose of this provision. Intention of the legislature to prohibit the
verification of the surrender in a manner other than the one prescribed, is
implied in these provisions. Failure to comply with these mandatory provisions,
therefore, had vitiated the surrender and rendered it non-est for the purpose of
s. 5 (3) (b).
For these reasons, we affirm the judgment of
the High Court and dismiss the appeals with one set of costs.
P.B.R.
(1) [1876] Ch. D. 426.
(2) L. R. 63 1. A. 372-AIR 1936 P. C. 253.
Appeals dismissed.
(3) Shiv Bahadur Singh v. State of U. P.
[19541 S.C.R.
1098; Deep Chandy. State of Rajasthan [1962]
S.C.R. 662.
(4) Maxwell's Interpretation of Statutes,
11th Edn., pp, 362-363.
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