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1996 Supreme(SC) 441
1996(2) SUPREME 650
SUPREME COURT OF INDIA
K. Ramaswamy & G.B. Pattanaik, JJ.
Junjaram -Appellant
versus
Bhaurao & Ors. -Respondents
Civil Appeal No. 2575 of 1982
Decided on 22-2-1996
Counsel for the Parties :
For the Appellant : V.A. Bobde, Sr. Advocate.
For the Respondents : V.B. Joshi, Advocate.
IMPORTANT POINT
Only when the tenant surrenders agricultural leases by a registered document executed in favour of the landholder surrendering tenancy rights thereunder, then only the protected tenant ceases to be a lessee of the agricultural lands.
Headnote:(i) Berar Regulation of Agricultural Leases Act, 1951-Section 6(1) -Agricultural leases-Tenant surrendering his rights in land not through registered instrument-Surrender is illegal and in violation of mandatory provisions of Section 6(1).
Held that the legislature intended to protect the leasehold rights of a protected tenant and the surrender being in derogation of the right, Section 6(1) enjoins to divest that right only when the tenant surrenders agricultural leases only by a registered document executed in favour of the landholder surrendering tenancy rights thereunder. Then only the protected tenant ceases to be a lessee of the agricultural lands. Admittedly, though the document Annexure I marked in this paper book was executed on January 3, 1956 surrendering his rights in the aforesaid land, it was not through a registered instrument and that, therefore, the surrender is clearly illegal and in violation of mandatory provision. If the instrument is not a registered instrument, then the question of genuiness or fraud or corecion need not be gone into as the surrender gets crushed under the fringing facts of Section 6(1) of Berar Act. (Para 6)
(ii) Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958-Sections 10, 132-Berar Regulation of Agricultural Leases Act, 1951-Section 6(1)-Agricultural leases-Surrender of-Application filed under Berar Act for restoration of lease-Pending decision Bombay Act, 1958 came into force-Application under Section 10-Whether proceedings pending under Berar Act could be disposed of under the Bombay Act ?-(Yes)-Proceedings pending under Berar Act did not get abated.
Held that the provisions of the Berar Act stood repealed by operation of sub-section (1) of Section 132. Sub-section (2) save as expressly provided in the Act, affected or was deemed to have affected any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of the Act. Since the right to restoration of agricultural land, a statutory right under the Berar Act had already accrued to and been acquired by the appellant, notwithstanding its repeal, by operation of sub-section (1) of Section 132, the said right continues to subsist and be available to the appellant. Sub-section (3) is merely a procedural part and says that all proceedings for the termination of the tenancy, ejectment of tenant for the recovery or restoration of the possession of the land under Berar Act pending on the date of the commencement of the Act before a Revenue Officer in appeal or revision, shall be deemed to have been instituted and pending under the corresponding authority under the Act and shall be disposed of in accordance with the provisions of the Act. Thus the proceedings pending under Berar Act did not get abated. Consequently, the proceedigns under the Berar Act shall be disposed of under sub-section (3) of Section 132 as if those provisions are in operation to the extent of the rights had under the Berar Act and saved by operation of sub-section (2) of Section 132 of the Act. (Para 8)
Since right to restoration of the possession was saved by operation of sub-section (2) of Section 132 of the Act read with Section 19 of the Berar Act, the same shall be disposed of under the Act as the rights under the Berar Act are available to the appellant. Consequently, there was no necessity for the appellant to file a fresh application for restoration as the application for restitution was pending before the competent authoirty. The Revenue Tribunal and the High Court, therefore, were wrong in holding that the application for restoration was barred by limitation. (Para 9)
(iii) Agricultural Leases-Right to protected tenancy-Surrender of lease in favour of landowner-Death of landowner-Existing right of protected tenancy continued to exist-Tenant not divested of his right for restitution of possession of land as against widow.
Held : As on the date of the surrender, admittedly, her husband was alive and surrender was in his favour. No doubt, subsequently, he died and the respondent became widow. On the date of the surrender, the right was available to her husband and even subsequently on demise of her husband, the existing right continued to exist and was not divested by any statutory operation. Therefore, the High Court and the Tribunal wrongly proceeded on the premise that she being a widow, the appellant ceased to have any protected tenancy right for restitution of the possession of land as against the widow. (Para 10)
ORDER
Abatement set aside. Substitution allowed.
Delay condoned.
2. This appeal by special leave arises from the order of the High Court of Bombay, Nagpur Bench dated December 4, 1980 in Writ Petition No. 1986/74 filed under Article 227 of the Constitution. The admitted facts are that the appellant was a tenant in respect of the lands situated in Brahmanwada in Murtizapur Taluk, District Akola in Vidarbha region of Maharashtra State. At the relevant time, Berar Regulation of Agricultural Leases Act, 1951, [Act No. 24/51] (for short, Berar Act ] was in vogue. The lands admittedly were agricultural lands admeasuring 29 acres 10 guntas in Serial No. 47. By a deed dated January 2, 1956 lands were surrendered as stipulated thus :
In the year 1955-56, he had taken loans and executed a promissory note. He discharged part of the debt. He was due of a sum of Rs. 300/- and he was unable to discharge the same. Consequently, he was surrendering his protected lease tenancy rights as a lessee to the landlord in lieu of discharge of the debt."
3. Subsequently, within one year he filed an application under Berar Act for its restoration to him. While the authorities, namely, the Mamlatdar and the appellate authority held that surrender was illegal and directed restitution of the possession of the land to the appellant, in revision the Deputy Commissioner set aside the order and remitted the matter for fresh consideration. Pending decision, the Bombay Tenancy & Agricultural Lands (Vidarbha region) Act, 1958 (for short, the Act ) had come into force. As an abundant caution, an application under Section 10 was also filed for restoration of possession of self-same land. Ultimately, in this proceedings, the Revenue Tribunal again had held that since the appellant had surrendered the possession of the land, he is not entitled to the restoration the claim being barred by limitation. It was held that the respondent being a widow of the original landlord on demise of her husband, the protected tenancy had ceased against her. Therefore, the appellant is not entitled to avail of the protected tenancy rights as against the widow which was upheld by the High Court in the writ petition. Thus this appeal by special leave.
4. Shri V.A. Bobde, learned senior counsel appearing for the appeallant, contended that the premise on which the Tribunal and the High Court have proceeded is wrong in law. On the date when the alleged surrender was made, the landlord was alive and had taken possession of the land. Therefore, on the date when the surrender is said to be voluntarily made, the protected tenancy was subsisting. Section 6(1) of the Berar Act mandates that such a surrender shall be only by registered instrument. Since, admittedly, the surrender was not through registered instrument, the said surrender does not bind the appellant. The approach in that behalf is not correct in law. Shri V.B. Joshi, learned counsel appearing for the respondent, contended that while the proceedings were pending before the primary authoirty, the Act had come into force. Thereunder an application under Section 10 thereof came to be filed which was found not to have been filed within limitation. Even otherwise since the respondent was a widow, there is no protected tenancy rights available under the Act to the appellant. Therefore, the High Court in either event was right in concluding that the appellant was not entitled to the benefit of the provisions of the Berar Act or the Act.
5. Regard being had to the respective contentions, the question arises whether the appellant is entitled to the restoration of the possession of the lands which admittedly had been taken possession of, under surrender deed dated January 3, 1956 ? Section 6(1) of the Berar Act reads thus :
"A protected lessee may, by delivering to the landholder, not less than 30 days before the date of the commencement of the agricultural year, a registered document executed in favour of the landholder surrender his rights and
