Laxmanrao Anantrao Stardekar vs Bapu Satyappa Pawar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 33

IN THE HIGH COURT OF BOMBAY
(Full Bench)
P.B. Sawant, B.G. Kolse-Patil G.H. Guttal, JJ.
Laxmanrao Anantrao Stardekar.... Petitioner.
Versus
Bapu Satyappa Pawar .... Respondent.
Special Civil Application No. 1318 of 1979, Writ Petition No. 1282 of 1983 and Writ Petition No. 5175 of 1984, decided on 25-1-1988.
Advocates appeared :
V.M. Limaye with N.D. Hombalkar, for petitioner in S.C.A. No. 1318/97.
N.G. Patil for Bhimrao N. Naik, for respondent Nos. 1 (a to h) in S.C.A. No. 1318/79.
A.V. Bandivadekar with S.K. Shinde and Smt. Sulbha Dhonde, for petitioner in W.P.No. 1287/83, for respondent in 5175/84.
A.Y. Sakhare, for the respondent in 1282/83, and for petitioner in 5175/84.

Headnote:BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1939
       Sections 5 and 15 (As amended by Act, 1948)-Bombay Tenancy and Agricultural Lands Rules, 1956-Rule 9-Surrender of tenancy-Surrender starts taking effect only from the date of verification-Surrender of tenancy will be effective from the date of verification by the Mamlatdar.
       In view of the provisions of Section 15 (1) and Rule 9 and in the light of the decision of the Supreme Court, the position of law which emerges is that till the surrender is verified by the Mamlatdar in the manner laid down by the provisions, there is no surrender in the eyes of law. Any act done prior to verification of the surrender does not amount to surrender. The surrender starts taking effect only from the date it is verified and not from any time there before. That being the case, there is no question of surrender to tenancy taking effect from any date prior to the date of its verification by the Mamlatdar.
       The language of Section 15 (1) and Rule 9 requires that, ordinarily, the Mamlatdar should endoree his finding that the surrender is voluntary at the time of verification of the surrender itself. Cases may, however, arise where the Mamlatdar, for one reason or the other, defers his endorsement or is impelled to do so by exigencies of circumstances. When he rejects the surrender as involuntary and the order of rejection is passed at a date later then that of verification, nothing of consequence will follow from whether it is related back to the date of verification or not. However, when he endorses the surrender as voluntary at a date later than the date of verification, the question referred to the Court, does and will arise, viz. whether the surrender should be effective from the date of his endorsement or from the date of verification.
       The nature of surrender viz. whether it is voluntary or involuntary, does not change with the date of endorsement. When the endorsement of the surrender is deferred for one reason or the other, all that happens is that the ministerial act of recording his findings is put off by the Mamlatdar. That act of the Mamlatdar does not either add to or detract from the character of the surrender. The endorsement merely records the nature or surrender which has already been effected. In the circumstances, there should be no difficulty in holding that although an endorsement of the surrender is of later date, it should relate back to the date of its verification.

JUDGMENT - P.B. SAWANT, J.:---The question of law, which has been referred to us for decision, arises under section 15 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called "the Act") read with Rule 9 of the Bombay Tenancy and Agricultural Lands Rules, 1956 (hereinafter called "the Rules"). The question is whether the surrender of his tenancy by the tenant becomes effective from the date of endorsement of the surrender by the Mamlatdar or from the date of verification by him of the surrender or from the date of the tenant's application for surrender of his tenancy.

2. The few facts, necessary to appreciate the points, are as follows :---

The landlord filed an application before the Mamlatdar on 26th March, 1957 for possession of the land under section 29(2) of the Act. The application was accompanied by a deed of surrender of his tenancy by the tenant, which was dated 5th March, 1957. On 27th August, 1957, the Mamlatdar recorded the first statement of the tenant under section 15 of the Act, read with Rule 9 of the said Rules to the effect that the tenant desired to surrender his tenancy. His further statement to the same effect was recorded on 24th September, 1957, and the verification of the tenant's desire to surrender the tenancy was made by him on October 22,1957. On the same day, an order accepting or endorsing the surrender was also made and the tenant was directed to hand over possession of the land to the landlord. Pursuant to this order, on 30th January, 1959 the possession of the land was handed over to the landlord.

Thereafter in January 1974, the tenant got a pencil entry made in his favour as a tenant in respect of the land, and on January 26, 1974, statutory price in the proceedings, already commenced under section 32-G, was fixed. The tenant, thereafter, started obstructing possession of the land. Hence, the landlord filed a Civil Suit for permanent injunction restraining the tenant from obstructing his possession. The trial Court, in the beginning, granted ex parte ad interim injunction which was vacated later on. Against the order vacating the injunction, the landlord preferred an appeal to the District Court, which was allowed. The tenant's Revision against the appellate order was dismissed by this Court.

In the mean while, the landlord had also preferred appeal against the order fixing statutory price in the proceedings under section 32-G of the Act. The appeal was allowed by the District Deputy Collector. Against the appellate order, the tenant preferred a revision before the Maharashtra Revenue Tribunal, which was allowed. Against the decision of the Revenue Tribunal, the landlord has filed the present writ petition and it is in this petition that the above question was framed by a learned Single Judge and referred to the Division Bench. The Division Bench in its turn has forwarded the question for decision to the Full Bench.

3. The relevant provisions of section 15(1) read thus :---

15 (1) "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 Mamlatdar in the prescribed manner."

Rule 9 of the Rules lays down the manner in which the verification of the surrender of the tenancy has to be made by the Mamlatdar under section 15 and the Rule reads as follows :---

Rule 9. Manner of verifying surrender of tenancy.---"The Mamlatdar, when verifying the surrender of a tenancy by a tenant in favour of the landlord under section 15 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 instrument of surrender."

4. In the Tenancy Act of 1939, which was the predecessor Act of the present enactment, the relevant provisions with regard to the surrender of his tenancy by the tenant were contained

Click Here to Read the rest of this document