Judgement

SHELAT, J. : The facts relevant to this appeal are short and no longer in dispute. Respondent 1 is the owner of Survey Nos. 974/2 and 975/4 situate in the villain Delol in district Panchmahals and the appellant at the material time was the tenant thereof. On May 15, 1956 the appellant voluntarily handed over possession of the said lands to respondent 1. It is, however, an admitted fact that the said surrender was not in writing and the procedure of inquiry and verification required by Section 15 of the Bombay Tenancy and Agricultural Lands Act, 57 of 1948 (hereinafter called the Act) was not gone through. The surrender though voluntary thus was not in accordance with Sec. 15 and therefore was not valid and binding on the appellant. It is not in dispute that respondent 1 thereafter personally cultivated the said lands. On January 6, 1961 the appellant applied to the Deputy Collector under Sec. 84 of the Act for summary eviction of respondent 1. The Deputy Collector dismissed the application holding that the tenant s remedy lay under Section 29 (1) of the Act. The Gujarat Revenue Tribunal, however, in a revision by the tenant set aside that order holding that Section 84 and not S. 29 (1) applied . Respondent 1 thereupon filed a writ petition under Article 227 in the High Court of Gujarat and the High Court held, on interpretation of Ss. 29 (1) and 84, that Section 84 did not apply in such cases and set aside the Tribunal s order. What is the scope of Section 84 of the Act is the question, therefore, arising in this appeal which is filed by the tenant after obtaining special leave from this Court.

2. On behalf of the appellant Mr. Bhandare raised the following contentions :

1. that a surrender of tenancy contrary to Section 15 is an invalid surrender and does not terminate the tenancy;

2. that on such invalid surrender, if the landlord takes possession such possession is wrongful and unauthorised and therefore the land must be said to be in unauthorised occupation and wrongful possession of the landlord;

3. that when the tenant on such dispossession files an application his right does not arise under any of the provisions of the Act as he has given up possession in breach of his right and title;

4. that in such a situation the tenant does not seek to enforce a right arising under the provisions of the Act but claims possession relying on his title as a tenant:

5. that such an application therefore falls under Section 84 and not under Section 29 (1); and

6. that Section 84 is directed against a person who is in unauthorised occupation and wrongful possession and therefore there is no warrant for any distinction between unauthorised occupation or wrongful possession arising under an invalid surrender and that arising under an invalid sale or transfer.

Mr. Desai for the respondents supported on the other hand, the High Court s judgment and relied on certain decisions of the High Courts of Bombay and Gujarat on the interpretation of Sections 29 (1) and 84 of the Act. Before we proceed to examine these contentions it is necessary first to read the relevant sections.

Section 15 reads as under :

"A tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord :

Provided that such surrender shall be in writing and verified before the Mamlatdar in the prescribed manner."

The relevant part of Section 29 (1) read as under :

"A tenant - entitled to possession of any land - under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar.

Sub-section (2) of Section 29 provides that no landlord shall obtain possession of any land held by a tenant except under an order of the Mamlatdar. Section 84 reads as under :

"Any person unauthorisedly occupying or wrongfully in possession of any land-

(a) the transfer or acquisition of which either by the act of parties or by the operation of law is invalid under the provisions of this Act,

(b) the manage