RAMCHANDRA KESHAV ADKE & ORS versus GOVIND JOTI CHAVARE AND ORS.

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 : G

p. 840

01 Septembei" 8, 1953, the predecessor of appellants 1 and 2 (herema~er. called the landlords) made an application to the Mamlatd!il" of M1ra1? that the ~enant (Respondent oo. 1) was willing to surrender his.tenancy m the agricultural land,. bearing Survey No. 102/2, admeasu~~ 8 .acr~s and 22 .Gunthas, situated at village Haripur, Taluka Mrra1, D1stnct Sangh m the State of Maharashtra. The landlord H prayed that the surrender in his favour should be verified unde~ s._5(3) of the Bombay Tenancy Act 67 of 1948. To this application the landlord annexed a letter of surrender 'Jearing the thumb-impression of the tenant. The Mamlatdar did not verify the surrender, or any final order in the matter. The landlord's application however came up before Shri Bhokare, the then Circle Officer. of Mirai after recording the statements of the tenant and the landlord, this order on it.

pp. 840–841

"The applicant and the tenant are present. The tenan: 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 ao 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 right as pro. tenant.

p. 841, margin A

I, 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 Secti'or. 29 (i) (3) o~ the B.T. and AL. Act 1948 Haripur Bhokare 18-9-53. (M. M. Bhokare)

p. 841, margin C

Circle Officer, Sangli."

p. 841, margin D

Pursuant to the above order, a Panchnama was prepared by Talati on November 20, 1953, in which it was stated that the possession of this tenancy land had been given to the landlord. The executed a Kabje-Pavti to the effect, that he had obtained the possession. Mutation entry No. 431 was also made in this respect in record of rights of the village and the name of the landlord was red as Kabzedar in actual possession. On April 23, 1959, the lord sold this land to appellants 3 and 4 and respondents 2 and

p. 841, margin D

On 9-11-1959, the tenant made an applicafron against th.: lord and his transferees (Sherikars) to the Additional Tenancy karkun, Miraj, praying for a declaration that he was the tenant-in-possession of the land in dispute and further that the opponents be juncted not to disturb his possession over the land. the altanative, he prayed that if he was found to have lost possession, the same be tored to him, This application was opposed by the landlord and 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 grounds found favour with the Tenancy Aval Karkun, and he dismissed tenant's application by an order dated 22-11-1961.

p. 841, margin E

Aggrieved, the tenant filed Tenancy Appeal No. 292 of 1962 fore the Special Deputy Collector, Sangli. The tenant preferred another appeal also, to the Deputv 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'~ Order was not an order nassed by a Mamlatdar as required by the Tenancy law and, consequently, it was without jurisdiction and void. He further held that there was no verific:i.t1on 8J2 SUPREME fl 9751 o~ the surrender applicatlon as required by law. He further that, in fact, the tenant had never surrendered the tenancy, continued to be in possession till he was illegally dispossessed and consequently hi~ application was within time. On these the Special Deputy Collector allu;ved both the appeals, and that the possession of the suit land be restored to the tenant. set aside the mder of the Circle Officer regarding the mutation entry.

pp. 841–842, margin G

Against the Deputy Collector's decision, the landlord preferred twc~ revision applications before the Maharashtra Revenue The Tribunal dismissed the revision applications and affirmed findings of the Deputy Collector. The landlords and their ferees thereupon moved the High Court of Bombay by two tions under Article 227 of· the Constitution for impugning sional orders of the Tribunal. The High Court, as already stated, dismissed the petitions. Hence these appeals.

p. 842, margin A

The common question that falls to be determined in these is whether in the circumstances of this case, the alleged surrender the tenant was valid ?

p. 842, margin C

The Deputy Collector and the Tribunal have concurrently ed this question in the negative on the threefold ground : (i) so-called surrender was a sham transacti'on 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 tenancy cases and as such Shri Bhokare's order, dated 18, 1953, was without jurisdiction and (iii) That the surrender not been verified as required by law.

p. 842, margin C

The High Court upheld the finding l'.ln ground (i), the same a finding of fact not shown to be erroneous. It did not think necessary to go into the second ground. Regarding the third it held that the alleged surrender was a nullity as there was no ance with the mandatory requirements of s.5(3) of the Bombay ancy Act, 1953 read with Rule 2-A in regard to the verification surrender.

p. 842, margin E

Section 5(3)(b) of the Act, at the material time, was as "A tenant may terminate the tenancy at any time by rendering his interest as a tenant in favour of landlord. Provided that such surrender shall be in writing and be verified before the Ma.mlatdar in the manner prescribed."

p. 842, margin F

The m~nncr of such verification has been prescribed by in these terms :

p. 842, margin G

''The Mamlatdar when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) sub-section t3) of section 5, shall satisfy himself, after enquiry as he thinks fit, that the tenant understands nature and consequences of the surrender and also that is voluntary, and shall endorse his findings in that behalf upon the doc:ument of surrender."

p. 842, margin G

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 fulfil these requirements : (1) It must be in writing. (2) It must be ycrified 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.

p. 843, margin A

ll.1r. 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 o~ 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 landlor.d, 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 surrender had been intelligently and voluntarily made by the tenant, and that it was only after verifying the requisite facts, the Officer made the order directing delivery 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".

p. 843, margin B

Thus, the first point to be considered is, whether the requirements of these provisions are mandatory or directory. "No universal rule", said Lord Campell" ( 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 bi:; ascertained upon a review of the language, subject matter and importance of the provision in relation to the general Gbject intended to be secured the mischief, if any, to be prevented and the remedy to be promoted by the Act.

p. 843, margin E

, Prior t·o 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.

p. 843, margin G

The Bombay Act 67 of 1948 registered an advance in the .of ameliorating the lot of r'yots. It marked a big step taken post-Independence era by the State legislature towards impleme,ntation of the policy of agrarian reforms. Chapter II of the Act with tenancies in general. Sections 5 and 15 are in this Chapter III makes provision for special rights and privileges ants and allied matters. The provisions in th.ese Chapters confer 'protected tenants' the right to purchase their holdings from landlords, to prevent uneconomic cultivati"On and to create courage peasant proprietorship.

p. 844, margin A

Provision for 'surrender' of tenancy first appeared in a bald without any safeguards, in the Proviso to Section 5(2) of the 1948. That Proviso ran thus:

p. 844, margin B

"Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering interest as a tenant in favour of landlord."

p. 844, margin C

In its unguarded form, the provision was inadequate, and :able. It was susceptible to 'lbuse. Under its cloak, scheming lords could squeeze out tenants, or induce them by questionable means to leave the protective umbrella of the Act. The (Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this provision and hedged round the surrender with ·sa(eguards. It substituted sub-section (3)(b)-as reproduced ·earlier in this judgment-for the old Proviso in Se.ction 5.

p. 844, margin C

The language of s.5(3)(b) and Rule 2-A is abwlute, explicit peremptory. The words "Provided that" read with the words be", repeatedly used in s.5(3)(b), make the termination of by surrender entirely subject to the imperative cond;tim1s laid the Proviso. This Proviso throws a benevolent ring of protection around tenants. It is designed to protect a tenant on two against tw·o types of dangcrs--one against possible coercion, influence and trickery proceeding from the landlord, and against the tenant's own ignorance, improvidence and attitude hdpkss self-resignation stemming from his weaker position tenant-landlord relationship.

p. 844, margin E

Thus, the imperative language, the bencficient purpose and tance of these prnvisions for efficacious implementation of the scheme of the Act all unerringly lead to the conclusion that thev i11tcncled to be mandatory. 'Neglect of any of these statutory sites would be fatal. Disobedience of even one of these would render thG surrender invalid and ineffectual.

p. 844, margin F

Having seen that the requirements of s.5(3)(b) and Rule obligatory, and not directory. it remains to be considered whether imperatives have been substantially complied with in the manner criibecl, and if not, what is the consequence of non-compliance

p. 844, margin G

The question of inherent jurisdiction apart. all that the Officer did in this case, was that he recorded the statements tenant and landlord and ,nade 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 oamc any longer and so he is surrendering the possession willingly along 11·ith crops and also the right as pro. tenant", he did n:ot say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did

pp. 844–845, margin H

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 recordi!J.g its satisfact10n 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 b.;-en even a substantial compliance with the statutory requirements.

p. 845, margin B

:Vlr. 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 bf'. 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.

p. 845, margin C

Next point to be considered is, what is the consequence of noncompliance with this mandatory procedure ?

p. 845, margin D

A century ago, in Taylor v. Taylor(!), ·Jassel M. R. adopt(;d 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. Emperot(') and later by this Court in several cases("), 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 obect 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 ~my other. ( 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 manm:r other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the >umndcr and rendered it 11011-est for the purpose of s. 5 (3 )(b).

p. 845, margin D

For these reasons, we affirm the judgment of the High Court .and dismiss the appeals with one set of costs. P.B.R Appeals dismissed.

p. 845, margin G

of of

p. 845, margin H